A new administration always brings change and the incoming Trump Administration is no different. So what’s a cross-channel marketer to do and plan for in the face of uncertainty? Carry on, but be prepared to pivot.
Given President-elect Donald Trump’s pro-business leanings and recent appointments, consumer data protection and privacy seem unlikely to incur increased scrutiny. But everything is up for grabs — including the new proposed Federal Communications Commission rules around broadband and personally identifiable information.
“We don’t know for sure what the new rules will be,” says Howard Homonoff, senior vice president with MediaLink, who sees difficulty for marketers if the FCC follows through on proposed moves to give broadband consumers increased choice, transparency and security over their personal data.
Recent transition team appointees Jeff Eisenach and Mark Jamison suggest the rules will be rolled back rather than tightened. Eisenach, a visiting scholar at the American Enterprise Institute, and Jamison, a former telecom consultant, will be guiding FCC policy.
“Developments within the Federal Trade Commission and FCC may or may not change the legal landscape for digital marketing,” says Stacey Gray, policy counsel with the Future of Privacy Forum. “Both are independent bipartisan agencies with teams of permanent professional staff, but big picture policy can nonetheless be determined by commissioners.
Still, the FTC will experience nearly complete turnover in the next couple of years, Gray notes. Two seats are vacant now and chairwoman Edith Ramirez’s term is expiring. Commissioner Terrell McSweeny’s term expires next year.
The FTC’s jurisdiction over privacy and security-related matters is derived from statutory Section 5 authority, which will remain unchanged, short of federal consumer privacy legislation. Likelihood of that seems to be low, Gray adds.
The FCC, in contrast, has promulgated net neutrality and broadband privacy rules that can be abandoned by a new set of commissioners because the rules are not embedded in statute.
For cross-channel digital marketers who deal in any kind of cross-border data flows, it will be very important this year to be aware of any developments in U.S. national security policies, because these could affect international agreements.
The newly adopted Privacy Shield is up for review on an annual basis (not re-authorization, but review). If U.S. policies around security or law enforcement are not deemed compatible, there could be consequences for U.S.-E.U. data sharing.
"While there may be uncertainty about the regulatory future of personal information handling, global enterprises can minimize the risk of privacy breaches by focusing on building relationships with the people whose information they process,” says John Wunderlich, a cross-border data specialist based in Toronto, who joins Gray and Homonoff on a Nov. 30 webinar to discuss the matter.
“Rather than depending on regulations to enable personal data processing out of sight of the users,” Wunderlich adds, “they should increase transparency to ensure they can rely on the users themselves for their authority to process personal information."
The so-called GDPR (General Data Protection Regulation) will introduce new accountability obligations, stronger rights and restrictions on international data flows.