The SECURE Data Act is Not a Serious Piece of Privacy Legislation

The federal SECURE Data Act is not a serious consumer privacy bill, and its provisions—if enacted—would be a retreat from already insufficient state protections.

Republicans on the House Energy and Commerce Committee released a draft of the bill late last month without bipartisan support. The bill is weaker than congressional proposals in prior years, as well as most of the 21 state consumer privacy laws already on the books.

The bill could wipe out hundreds of  state privacy protections.

Most troubling for EFF: the bill would preempt dozens, if not hundreds, of state laws that regulate related topics, and it would not allow consumers to sue to protect their own rights (commonly called a private right of action). And it comes nowhere close to banning online behavioral advertising—a practice that fuels technology companies’ always increasing hunt for personal data.

The bill also suffers from many other flaws including weak opt-out defaults, inadequate data minimization requirements, and large definitional loopholes for companies.

Key Provisions

The bill would give consumers some rights to take action to control their personal data— like access, correction, deletion, and limited portability. These rights have become standard in all data privacy proposals in recent years.

The bill would also require companies to obtain your consent before processing your sensitive data, or using any of your personal data for a previously undisclosed purpose. Absent your consent, a company couldn’t do these things.

Further, the bill would allow you to opt out of (1) targeted third-party advertising, (2) the sale of your personal data, and (3) profiling of you that has a legal, healthcare, housing, or employment effect. Unfortunately, a company could keep doing these invasive things to you, unless you opted out.

The bill would also require data brokers that make at least 50 percent of their profits from the sale of personal data to register in a public database maintained by the Federal Trade Commission (FTC).

Preemption of Too Many State Laws

Federal privacy laws should allow states to build ever stronger rights on top of the federal floor. Many federal privacy laws allow this, including the Health Insurance Portability and Accountability Act, the Video Privacy Protection Act, and the Electronic Communications Privacy Act.

The SECURE Data Act would not do that. Instead, it would wipe out dozens, if not hundreds, of existing state privacy protections. Section 15 of the bill would preempt any “law, rule, regulation, requirement, standard, or other provision [that] relates to the provisions of this Act.” This would kill the 21 state consumer privacy laws passed in the past few years. These state bills aren’t strong enough, but they are still better than this federal proposal. For example, California maintains a data broker deletion tool and requires companies to comply with automatic opt-out signals—including one that is built into EFF’s Privacy Badger.

Because the SECURE Data Act has provisions that relate to data privacy and security, it could preempt all 50 state data breach laws and many others. It could also preempt state laws related to specific pieces of sensitive data, like bans on the sale of biometric or location information. Some