Opt-In Privacy Bill Advances In New York

A sweeping privacy bill introduced recently in New York cleared its first hurdle this week, when it was voted out of the state Senate Consumer Protection Committee.

The bill (SB 6701), introduced by state Senator Kevin Thomas, appears to be among the most stringent proposals in the country.

Among other provisions, the bill would require companies to obtain opt-in consent from consumers before processing their data for ad targeting, and would empower consumers to bring class-action lawsuits over violations.

Thomas, who introduced a similar bill two years ago, tells MediaPost that privacy legislation is among the top items on his agenda. “As chair of the consumer protection committee, this is a priority for me,” he says.

He adds that the bill is driven partly by the “lack of accountability when it comes to companies collecting data [and] selling it.”

Citing a Pew study, Thomas says consumers are “afraid of what data has been collected, and what it's being used for.”

“We need to do something about it," Thomas adds. "I don't want to wait until something happens.”

The proposed New York bill includes some highly detailed restrictions, including ones that are clearly aimed at what advocates refer to as “dark patterns” -- meaning user interfaces that dupe people into agreeing to terms they don't really want.

Specifically, the bill would prohibit companies from using pre-checked boxes -- or other default settings -- to obtain consumers' consent to data processing.

The measure also would prohibit companies from “obtaining consent in a manner designed to overpower a consumer's resistance," including by “making excessive requests for consent.”

A separate provision would require companies to honor decisions regarding data that consumers make via global controls, such as commands that can be sent automatically through browsers.

For its part, the ad industry opposes the bill, calling it “overly restrictive” and “out of step with other emerging laws across the country.”

The proposed law “could inadvertently harm New York consumers by depriving them of access to valuable online products and services that are advertising-supported and provided for free or at a low cost,” the Association of National Advertisers, American Association of Advertising Agencies, Interactive Advertising Bureau, Network Advertising Initiative and American Advertising Federation say in a letter sent to state lawmakers on Thursday.

Among other concerns, the groups say the proposed law's opt-in approach “would be a drastic alteration in how consumers interact with the businesses they frequent on a day-to-day basis.”

They write: “Consumers will be inundated with constant requests for their consent to carry out the most routine, essential, and expected data processing activities. When presented with so many requests for consent, consumers will either reflexively provide consent to get the service they want or deny all requests and become frustrated when their requests to use a service are limited due to a lack of consent.”

The industry organizations also argue against privacy laws that would empower consumers to sue.

“We strongly believe private rights of action should have no place in privacy legislation,” they write. “Allowing private actions will flood New York’s courts with frivolous lawsuits driven by opportunistic trial lawyers searching for technical violations, rather than focusing on actual consumer harm.”

The industry groups say lawmakers should conduct a study of “the many practical and beneficial uses of data about consumers,” as well as other states' privacy laws, before moving forward with the bill.

New York's lawmakers will end this year's session on June 10, and it's not clear whether Thomas's bill has enough momentum to pass by that date.

Should the bill fail this year, Thomas says he will reintroduce it in the future.

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