This statement can be attributed to Chris Golden, Senior Vice President for Intellectual Property and General Counsel for the Software & Information Industry Association regarding the Hearing on The Patent Trial and Appeal Board After 10 Years: Impact on Innovation and Small Businesses.
Print publishers are tough but 2022 is shaping up to be an especially challenging year thanks to a historically large postal rate hike and a paper shortage that’s boosting costs, limiting inventory, and forcing publishers to accelerate their sales cycle. Taking action now can help you manage costs and preserve your bottom-line revenue next year.
The highly anticipated text of the federal consumer privacy bill that has been in the works for months was released in early June. The American Data Privacy and Protection Act (ADPPA) – H.R. 8152 – is the product of months of negotiation, compromises and input from industry experts on all sides.
The newly introduced 120-page bill authored by Sen. Roger Wicker (R-MS.), Rep. Frank Pallone (D-N.J.), Rep. Cathy McMorris Rodgers (R-WA), Rep. Bilirakis (R-FL), and Rep. Jan Schakowsky (D-IL), is historic as it is the first bipartisan, bicameral piece of legislation with a fighting chance of becoming law. We’ve gone through and pulled out a few points worth paying attention to as discussions continue to get underway. You can also review our thoughts on why privacy legislation is important here.
*Note this does not include all sections listed in the bill.
What are the Politics at Play?
The politics at play might be just as important as the bill itself as it has a direct impact on whether or not the bill passes. The bill authors include three of the “four corners”– Sen. Wicker, Rep. Pallone, Rep. McMorris Rodgers– otherwise known as the Chair and Ranking Member of the House and Senate committees that have jurisdiction over consumer privacy issues. Sen. Maria Cantwell (D-WA), the fourth corner, released her own privacy bill, the Consumer Online Privacy Act late last year and is in the process of working on further updates to her draft. This is important to note because this is a large piece of legislation to pass, and will require bipartisan agreement from, at minimum, all four corners. Without it, getting the necessary committee votes needed to pass the bill into law becomes that much harder.
What does the ADPPA Do?
The ADPPA is an attempt to create a federal consumer privacy law in the United States. Similar to the European Union’s General Data Protection Regulation (GDPR), a federal consumer privacy law would outline the requirements and regulatory business practices for how personal information is collected, stored, transferred, managed, and deleted from everyday users and consumers in areas that are not covered by sectoral privacy laws like the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act (HIPAA). It intends to provide consumers control over how personal information is shared, and would create new practices that allow individuals to be better informed on who has their information and access to it in a way that is easy to understand.
Who Will Need to Comply with ADPPA?
The short answer is most businesses and nonprofits. Both collect information from consumers as a part of their necessary business practices and legal obligations and are not currently covered by a sectoral privacy law. The bill does include certain limited exemptions for smaller businesses that are under a certain revenue or consumer data use threshold.
Some high level compliance points are outlined below:
In addition, the bill requires covered entities to develop responsible data security practices, create corporate accountability through the hiring of a chief privacy officer to oversee data privacy efforts, and bake in responsibilities for larger entities to establish impact assessments to balance and test any privacy benefits of new technologies using algorithms with their respective harms.
The aim of the bill is clear: lawmakers want Americans to have broad privacy rights that they have not had prior to this legislation and more companies to be complying with a baseline standard for responsible data use.
Who Enforces the Law?
The bill outlines three main enforcers of the law. At the federal level, the Federal Trade Commision (FTC) would be the enforcing agency, and at the state level, the State Attorneys General would have the right to enforce. To help the FTC enforce this law in particular, a new agency would be established within the FTC and begin enforcing the Act within one year of becoming law. State Attorneys General can also enforce the law, but must first inform the FTC before taking any actions. There is also a proposed third enforcer of the law: individual consumers. The current version includes a private right of action– the ability for private individuals to pursue legal action– as a mechanism of enforcement as well. This would not take effect until four years after the ADPPA passes. Further, individuals would still need to notify the FTC before taking action to give them an opportunity to intervene.
What Action Has Happened on the Bill So Far?
The latest on the bill was a House Energy & Commerce subcommittee markup on June 23rd which resulted in a favorably subcommittee vote. A few of the key points raised focused on civil rights and preventing discrimination via algorithms, the guardrails for protecting sensitive data – especially the data of those under 17 – and the scope of the agency that would be in charge of enforcing the law. As indicated at the hearing, more changes are anticipated in the coming weeks.
Prior to the markup, the House Subcommittee on Consumer Protection and Commerce held a hearing on an earlier discussion draft of the bill on June 14th. Questions were raised on how to more clearly define who must comply with the law and what their obligations are to prevent mix ups that would unnecessarily complicate daily functions across the digital ecosystem. The initial hearing led to the updated version which now also addresses the need for a business to government (B2G) exception, exclusions to the definition of biometric information, and a limitation on the requirement for algorithmic impact assessments.
So, what do we anticipate as next steps?
While encouraged by the progress that has been made, more clarity on the following is still anticipated:
Questions remain as to whether the Senate will introduce its own federal consumer privacy bill, or if the Senate Commerce Committee – the majority side that is led by Senator Cantwell – will back the House version of the legislation.
Conclusion
The ADPPA is a guidepost for what a comprehensive federal privacy law might look like if passed by Congress this year. Considering the large swaths of business that will be affected, this is only the beginning and there are sure to be rewrites and various iterations before the bill is in an agreeable form that would pass both chambers of Congress.
The most important thing to keep in mind is that whatever the final version of the bill, it will be a significant change in terms of newfound restrictions and rights on both the business and the consumer, especially across states that don’t have current consumer privacy laws on the books – which is all but five.
The latest series of TECH& Competition. SIIA Senior Vice President Global Public Policy Paul Lekas talks with cyber security expert Glenn Gerstell about the impact of the the American Innovation and Choice online Act (S.2992).
Jeff Lenard, vice president of industry advocacy for NACS (National Association of Convenience Stores), put up a chart of downloads of their podcast Convenience Matters. On the left we saw the previous year and short podcast titles with downloads of like 500 and 600. On the right were the latest podcast titles—many of them turned into questions: How Stuckey’s Is Bringing Back the Road Trip; Is the Great Resignation Over? What’s the Tipping Point for Gas Prices?—and a clearly more dedicated effort at snappier titles with triple the downloads.
“It wasn’t a huge content shift,” Lenard said. But moderator Blake Althen, co-owner and producer of Human Factor, who works with NACS on the podcast, said “It was everything around it [that changed].” The takeaway: little things matter.
Althen, Lenard and Kat Shamapande—director, professional development, National Association of Surety Bond Producers, and host of their podcast Let’s Get Surety—waxed thematically and entertainingly to a large gathering last week at the AMPLIFY Content & Marketing Summit during a session on podcasts.
“We needed ours to be industry focused,” Lenard said, after initial attempts at trying to be too broad. “We also decided to get two hosts for every episode, rotating them. It’s just better for the conversation to play off each other.”
They decided on a length of time—22 minutes; that’s about the average commute, he said, though not here in DC. “Or that’s maybe a usual dog walk. We were just thinking of the ways people might consume it now.”
But there was more. They took it on the road, to one of their large trade shows with 20,000 people. “These were face-to-face conversations with people you’re not going find anywhere else,” Lenard said. They also tied the podcast to a bigger initiative. “When we have speakers at an event, they also have to be on a podcast. You have a magazine article about you, you have to be on a podcast.”
So when Mike Rowe spoke at an event, that subsequent podcast gathered a few thousand downloads. And when William Shatner “went crazy when he learned he had to do a podcast, “then we couldn’t shut him up,” Lenard said. But after a COVID bump, they weren’t seeing sustained increases. “Let’s test and learn,” Lenard recalled. “We decided to focus on what the audience wants, not what we have. Let’s tell stories, focus on themes.”
So the whole month of May centered on road trips. A member of the band The Nighthawks appeared on a podcast to talk about their song Gas Station Chicken and played it on the podcast. “Take people who have followings and use that following to your advantage,” Lenard advised.
For Shamapande, the goal was to “get more information about sureties out there. This allowed us to get beyond our paywall to reach a broader audience that didn’t want to pay.”
They average about 1,000 downloads for two podcasts a month. For sponsorships, they’ll put it into various packages with other products. The prices vary from $7500 to as low as $3500. A sponsor can propose a speaker and topic, “but this isn’t infotainment,” she said. “We avoid anything heavily promotional. Sponsors love when we record it live at an in-person event.
“Before us [our audience] didn’t listen to podcasts. So it was an uphill battle in selling. We brought in a panel of past presidents who have political capital in the industry,” and that helped propel it. It’s made our industry more well-known.
Her podcast advice: “Make sure it’s more conversational—and fun. And don’t treat an episode as filling holes. As soon as you treat it like that, it will start sounding like that.”
Althen delved a bit into the sponsorship options:
And lastly, some more advice from Lenard:
He admitted it’s hard to monetize podcasts. They charge $3,000 for a full podcast. “That’s less than a full page ad in our magazine. I think we should charge $10,000; we have to do a better job of selling it and allow our sales force to talk about it differently [because] it’s like [the sponsor is] talking to an audience of 2,000 for 22 minutes.”
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