Privacy in Peril: The Collapse of the American Privacy Rights Act and the Ongoing Battle for Data Control

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Dell Cameron

Shocking News: The Newest 'All-Encompassing' US Privacy Legislation Faces Failure

The ongoing monitoring that affects the majority of Americans seems set to persist following the decision by Congress members on Thursday to withdraw a proposed privacy law. Legal authorities argue that this legislation stands little chance of safeguarding individual privacy.

For years, U.S. legislators have toyed with the notion of granting citizens a degree of power over their personal information. However, they abruptly pulled the most recent version of an all-encompassing privacy proposal that has been repeatedly revised and discussed for almost ten years. This legislation, termed the American Privacy Rights Act (APRA), was set for review on Thursday morning by the House Energy & Commerce Committee (E&C), the body responsible for overseeing issues related to commercial surveillance.

The choice to call off the meeting was influenced by reports that Republican leaders in the House had secretly promised to block the legislation, regardless of whether it passed in the committee. However, by cancelling Thursday's meeting, not only did Republicans exercise their control, but it also spared numerous Democrats the tough choice of backing legislation that had just been significantly weakened in terms of essential civil rights safeguards.

The APRA, committing to creating a "national framework for consumer privacy," was developed based on numerous bills presented in Congress over the last ten years— a series of unsuccessful attempts to protect US citizens from the pervasive scrutiny and data collection activities of a predominantly unchecked commercial surveillance sector.

The legislation proposed to introduce a range of new obligations for companies that are extensively collecting private information from Americans. It aimed to enforce these companies to allow individuals to access, modify, and even delete their personal data upon request. Additionally, it sought to reduce data collection by implementing various mechanisms for opting out and requiring consent; it also intended to establish new guidelines for transparency and enhance standards for data protection. Nonetheless, with each unsuccessful attempt to enact such a law, an increasingly large segment of the US economy grows reliant on the practice of businesses closely observing their customers' everyday activities. These activities today affect crucial aspects of people's lives, including securing quality housing, accessing healthcare, and finding jobs, among others.

The ongoing delays only strengthen the hold of US companies in scrutinizing every small aspect of individuals' lives, simultaneously framing their lucrative surveillance operations as both unavoidable and beneficial for humanity.

Republicans, who are steadfast in their resistance to the strictest protections and advocate for what they describe as a more "pro-business" stance, possessed the true authority to dismantle the legislation. Meanwhile, House Democrats also faced significant pressure to ensure the bill did not survive. A journalist closely monitoring the bill's progress in the House summarized the situation on Wednesday, stating, "Everyone dislikes it."

By Tuesday, APRA saw its backing from numerous prominent privacy and civil liberties organizations nationwide dwindle. Groups including the American Civil Liberties Union and the Center for Democracy & Technology announced their withdrawal of support for APRA. This decision came after lawmakers from the Energy and Commerce Committee earlier in the week removed critical elements designed to shield disadvantaged individuals from discrimination and the negative impacts of artificial intelligence technologies.

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Authored by Jaina Grey

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Numerous civil rights groups had been pressuring Democrats, some of whom had surprisingly agreed to the modifications, to reject the proposed legislation. They contended that the alterations were both “profoundly substantial and unacceptable.”

In a move designed to satisfy right-wing advocacy groups linked to large corporations, the latest version excludes, among other things, an important clause related to "civil rights." The removed clause intended to stop companies from handling personal data in ways that could lead to discrimination or restrict access to goods and services based on race, color, religion, national origin, gender, or disability. It's quite clear why Republican legislators are strongly against this type of wording at this point.

The removal of provisions from a legislative proposal that aim to hold corporations responsible for data-based decisions resulting in potential discrimination in areas such as housing, employment, and health care, prompted a significant reaction from civil society groups. This includes entities like the NAACP, the Japanese American Citizens League, the Autistic Self Advocacy Network, and Asian Americans Advancing Justice, alongside many others.

In a communication addressed to the Energy and Commerce Democrats this week, which WIRED had access to, the organizations stated, "The realms of privacy rights and civil rights have merged into a singular, intertwined entity that demands safeguarding. The exploitation of our personal information extends beyond mere targeted ads or security violations. Nowadays, this data plays a critical role in determining who is granted a loan, admission into specific educational institutions, and employment opportunities—or conversely, who is denied these privileges."

However, the reductions didn't stop at that point. The latest iteration of the ARPA significantly omitted provisions that would have allowed users to decline participation before businesses could employ algorithms to "make a significant decision" based on someone's personal information. Simultaneously, provisions that would have required businesses to conduct assessments, or audits, of how their algorithms affect users were also removed.

These two clauses included significant exceptions that favored business interests. For example, individuals could decline participation in decisions made by algorithms only if such a refusal didn't incur "excessive expenses" or was not "clearly unfeasible because of technical constraints." Likewise, firms could restrict how much the public learned about audit outcomes by opting to employ an external evaluator to conduct these reviews instead of handling them in-house.

"Earlier iterations of APRA mandated that firms engaging in or deploying AI for automated decision-making in key sectors such as jobs, real estate, and lending must disclose the workings of such systems and give individuals the choice to withdraw from automated decisions," Eric Null, who is the co-director of the privacy and data initiative at the Center for Democracy & Technology, a nonprofit focused on digital rights, explains. "Absent these requirements, individuals are at risk of being impacted by AI that plays a significant role in crucial decisions about their lives, with minimal or no means of defense."

Organizations focused on digital rights, including Access Now, Demand Progress, and Free Press Action, have united to urge Democrats to reject these modifications, emphasizing that “a privacy bill lacking in civil rights safeguards fails to effectively shield us from the gravest misuses of our personal information,” and criticizing that these alterations were made “without engaging with key stakeholders in advance or evaluating how they might compromise the legislation’s capacity to tackle discrimination fueled by data.”

On Wednesday, WIRED made contact with 23 Democrats who are members of the E&C, seeking their reactions to the requests made by these organizations. Only one legislator replied:

"US representative Nanette Barragán expressed her reservations about the American Privacy Rights Act, highlighting that certain terms in the legislation might potentially weaken existing, more robust data privacy measures in place in California, her state of origin. 'My apprehensions about the legislation have only intensified with the recent version, as essential civil rights elements have been excised from the draft,' she stated."

Following the cancellation on Thursday, Frank Pallone, Jr., the top Democrat on the Energy and Commerce Committee, criticized Republican leaders for disrupting the committee's procedures. Simultaneously, he expressed his appreciation to Cathy McMorris Rodgers, the committee's Republican leader, acknowledging her commitment to empowering Americans with control over their personal information.

"Pallone emphasizes their determination, stating that he and his fellow lawmakers are the only members in Congress brave enough to confront major technology companies for the benefit of the American public."

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