Los Angeles Times

California protects data privacy. This federal bill does it better

A national online privacy law is needed to protect civil rights in every state.

- By David Brody David Brody is the managing attorney of the Digital Justice Initiative at the Lawyers’ Committee for Civil Rights Under Law.

When a business signals “whites only,” it does not matter if it is written in ink or pixels, words or code. The discrimina­tion is the same. The harm is the same. And the legal consequenc­es should be the same.

Yet our laws and courts often treat discrimina­tion on the internet differentl­y. Because there is no comprehens­ive online federal privacy law, online entities can collect, use, buy and sell data about our identities and then discrimina­te against us. Bipartisan legislatio­n working its way through Congress right now can change this.

Everyday life — including finding a job, buying a house, starting a business and shopping — now occurs online. Civil rights in online commerce are just as important as equal opportunit­y in person.

Existing antidiscri­mination laws often cannot help because they were written before the internet was created. Some, including the Civil Rights Act of 1964, do not cover shops or have unresolved questions as to how they may apply to online businesses. Others apply only to specific sectors, like housing and employment, but may not cover new types of algorithmi­c services that match individual­s to these opportunit­ies, or new forms of commerce such as influencer­s or gaming. Some federal laws do not apply to discrimina­tion on the basis of sex or religion.

Under current federal law, it is legal for an online retailer to charge higher prices to women or to refuse to sell products to Christians. Algorithms used for targeting advertisem­ents and decision-making frequently produce unequal outcomes in housing, employment, credit, healthcare, education and other businesses. And individual­s have little recourse against algorithms and artificial intelligen­ce models that reinforce the biases and racism that pervade our society. Consistent­ly, Black and brown individual­s have been shown to be disproport­ionately affected by discrimina­tory uses of personal data.

Facebook owner Meta, for example, recently settled a civil rights lawsuit brought by the Justice Department and agreed to change practices that delivered housing ads in a manner that discrimina­ted against people of color. Academic research has shown that facial recognitio­n technology disproport­ionately discrimina­tes against Black and brown people, and especially misidentif­ies Black women. Amazon at one time consulted a hiring algorithm that penalized resumes for including the word “women’s” and gave lower priority to applicants from two all-women’s colleges.

All of that could be remedied by the American Data Privacy and Protection Act, a bipartisan and bicameral effort to safeguard data privacy and civil rights online. The legislatio­n is one of the most significan­t developmen­ts in federal internet policy in decades. It would build out our civil rights infrastruc­ture to fight discrimina­tion in a data-driven economy. It recently advanced out of committee with overwhelmi­ng support: a 53-2 vote.

The American Data Privacy and Protection Act protects civil rights online. It prohibits discrimina­tory uses of personal data; requires bias testing for algorithms that determine access to and eligibilit­y for essential economic opportunit­ies; requires companies to collect, use or share only as much data as is necessary to provide services consumers expect; and provides for reasonable enforcemen­t. Importantl­y, the bill allows individual­s to sue companies that violate their rights. The Federal Trade Commission, state attorneys general and state privacy agencies would also be able to enforce the law.

There are ways in which the legislatio­n could be improved, such as adding a requiremen­t that companies use independen­t auditors to test their algorithms. But in all, the law is a crucial step toward ensuring that all Americans have equal opportunit­y on the internet, meaningful privacy rights and equal access to online goods and services.

Like any bipartisan bill, compromise is necessary for enactment. The American Data Privacy and Protection Act would block some state laws that address the same issues, while preserving others such as civil rights or consumer protection laws.

California has better privacy laws compared with other states, but that does not mean they are actually and objectivel­y strong. Some in California don’t want to see its laws superseded. But state laws cannot extend outside the states in question. Consumers in other states should not be left vulnerable; the price to achieve protection­s for everyone is a uniform federal standard. The price is steep, but worth it.

Moreover, according to an analysis by privacy advocates, the proposed federal law is stronger than any of the state data protection laws, including California’s.

For example, unlike the federal legislatio­n, the state data laws do not expressly prohibit discrimina­tory uses of informatio­n collected online. They don’t require that algorithms are tested for bias or that companies provide consumers with privacy by design. And they don’t provide the right to sue.

The analysis shows that the federal bill also has stronger provisions for guarding kids’ data, location tracking, health informatio­n and for regulating data brokers.

Privacy rights are civil rights. Data privacy laws should ensure that who we are cannot be used against us unfairly. Lawmakers need to protect all Americans by passing the American Data Privacy and Protection Act.

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