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Inside the behind-the-scenes push civil rights groups are making on Capitol Hill to pass data privacy laws

They’re keeping the ADPPA alive.

 

Ben Brody

Tech

Last summer, a letter from civil rights groups urged then-House Speaker Nancy Pelosi (D-Calif.) to bring a bill on online privacy to a vote. It was easy to miss: Dozens of missives like it whip around Capitol Hill every day and Pelosi never did as the advocates hoped.

But the note was one of the first signals that a powerful and venerable constituency for lawmakers—especially Democrats—would throw its weight behind the push to remake the digital privacy landscape.

It was also an unmistakable notice to less-than-committed allies of the bill—who were grumbling about its compromises—that the civil rights community intended to keep its focus on reining in technology companies. 

“It really was to make sure that the civil rights community’s voice was heard and to let policymakers know this is an issue that we care about and we deserve a seat at the table,” said Jonathan Walter, policy counsel for the Media & Technology Program at Leadership Conference on Civil and Human Rights. 

The group worked to pass the major civil rights laws of the mid-20th Century and helped plan the 1963 March on Washington.

Now, it is focused on privacy. And in the new Congress, civil rights groups like the Leadership Conference want to use a heavyweight coalition—which includes the NAACP and the National Organization for Women—to ensure Congress takes on Big Tech. The push could prove potent, spurring both Republicans and Democrats to pass a rare law they can agree on.

While the traditional pillars of advocacy from civil rights groups have included policing, voting, education, and housing, these groups say it is natural to get behind data privacy. 

Advances in tech have threatened privacy and civil rights that Americans have come to rely on, as Congress failed for decades to step in and ensure protections online. Law enforcement use widespread technology to step up surveillance, circumventing warrant rules by buying information from private data brokers. Huge digital platforms facilitated discrimination in ads: Last year, Meta settled federal charges that it was helping keep Black homeowners out of neighborhoods. Similar data abuses crept in on tenant screenings, hiring, business loans, and insurance applications, data now able to affect people’s ability to fairly participate in society.

Rights to privacy and protection—exploited and erased by big data—have been foundational to Americans of color, women, non-Christians, and others, as they’ve fought against hateful ideology to bend American society towards justice. 

In the 1950s, Alabama tried to force the NAACP to disclose its membership, prompting the Supreme Court to uphold Americans’ right to belong anonymously to a group. The unanimous ruling knocked down the thinly veiled attempt to intimidate civil rights activists.

Now, that new right to privacy is coming under threat. 

“Technology has advanced so much that most of us rely on it for the most intimate and seemingly mundane aspects of our lives,” said Sumayyah Waheed, senior policy counsel at Muslim Advocates, another group that is active in privacy fights. “But then we don’t necessarily recognize how much that data is collected and then sold.”

One of the primary vehicles for civil rights groups’ efforts is the privacy legislation they wrote the letter on—the American Data Privacy and Protection Act (ADPPA). It would require a wide range of digital companies to guarantee data rights to consumers, minimize the information collected, and boost protections for children and teens.

After years of failed efforts to pass digital privacy legislation, it landed in June 2022 2022 with praise from three of the four key committee leaders who would oversee its passage. It sailed through that panel with an overwhelmingly bipartisan vote.

All of this gave the measure a seriousness that prior bills had lacked.

Despite the reputation of Congress for ignorance on tech issues, the bill was forward-looking. It emphasized limits on what data companies can suck up, rather than trying to saddle users with confusing choice screens if they wanted to keep their information to themselves, as Europe had done just a few years before. 

On civil rights, the ADPPA would ban using consumers’ data to discriminate against them on the basis of race, sex, religion, and other protected categories—while requiring big companies to assess their products for the risk of discrimination. Many in the civil rights community felt it could have gone further, but they also saw it as a significant-enough step to be worth supporting.

Advocates from the civil rights arena said they were active in helping design these protections against discrimination and biased artificial intelligence algorithms in the legislation, working with both Republican and Democratic staffers and lawmakers on the Hill. 

“We’ve had a really strong, great working relationship with both sides of the aisle,” said David Brody, managing attorney of the Digital Justice Initiative at the Lawyers’ Committee for Civil Rights Under Law. Brody also testified in favor of the bill last June, and while he and the witnesses all praised the process and made suggestions for fixes, he was vocal in casting passage of the bill as vital.

Voices like that are needed, as some of the concessions Democratic negotiators made to bring Republicans on board alienated key stakeholders in the debate, meaning that the civil rights community’s backing became all the more crucial. 

A big compromise was the ADPPA would overrule state data-protection laws. The most consumer-friendly digital privacy statute on the books in the U.S. is California’s and the state sent 53 representatives to the House last year—a powerful bulwark. Most of those members were either angry about the way the law would defang Sacramento or happy to defend their hometown tech industry from regulation. 

At the time, the privacy community that might otherwise have spoken up in favor of sidelining California to get the bill passed also fractured.

Hence the letter to Pelosi: The civil rights community said that even if lawmakers and privacy-focused think tankers were squabbling, the ADPPA was urgent.

“To accomplish these sweeping advancements and bring relief to millions today, we understand that some compromise is necessary,” the letter argued, commending “California and other states for leading the way in establishing state-level privacy protections” that a needed federal bill would build on.

The offer of political cover to supporters of the bill was potentially most potent with Democrats, who have come increasingly to rely on voters of color.

Now, the civil rights and privacy communities alike are awaiting the reintroduction of the ADPPA, eager that Republicans haven’t broached the civil rights protections in discussions of the bill.  

David Morar, a policy fellow at the Open Technology Institute, suggested that the civil rights community’s support has been vital, behind-the-scenes backing for the many lawmakers who want to get privacy done.

“I don’t think Republicans would want to lose that support, considering that that is also getting a good number of Democrats on board,” Morar said.

When Republicans convened a hearing on privacy in March, the lead negotiators reiterated their commitment to ADPPA and GOP lawmakers suggested that the biggest changes they would seek would focus not on civil rights but on issues like the status of state laws and consumers’ ability to sue.

“We must continue our work so that individuals can exercise their rights, businesses can continue to innovate, and the government’s role is clearly defined,” Rep. Cathy McMorris Rodgers (R-Wash.) said.

The factions in the House aren’t the only thing standing in the way of ADPPA. Sen. Maria Cantwell (D-Wash.), said she’s committed to privacy, but nonetheless has held ADPPA back, remaining steadfast that it doesn’t go far enough. 

In the meantime, the civil rights workers aren’t just waiting for ADPPA. Some have zeroed in on efforts to ban the sale of data to police that they would otherwise need a warrant to obtain. Others worked with the White House on its effort to boost the enforcement of civil rights laws and incorporate equity into executive agencies’ data and AI work. The same went for an outline President Joe Biden’s administration released on the ethical use of AI.

Brody, of the Lawyers’ Committee, said the variety is encouraging for the ADPPA.

“Privacy is one of the few policy areas where there really can be some cooperative bipartisan movement,” he said. “There definitely seems to be a strong desire on both sides of the aisle, at both ends of Pennsylvania Avenue, to get something done.”

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