Biden EO Restricts Sale Of Consumer Data To ‘Countries Of Concern’ (But We Still Need A Privacy Law And To Regulate Data Brokers)

So we've noted for a long while that the fixation on China and TikTok specifically has often been used by some lazy thinkers (like the FCC's Brendan Carr) as a giant distraction from the fact the U.S. has proven too corrupt to regulate data brokers, or even to pass a baseline privacy law for the internet era. The cost of this corruption, misdirection, and distraction has been fairly obvious.

Enter the Biden administration, which this week announced that Biden was signing a new executive order that would restrict the sale of sensitive behavioral, location, financial, or other data to countries of concern," including Russia and China. At a speech, a senior administration official stated the new restrictions would shore up national security:

Our current policies and laws leave open access to vast amounts of American sensitive personal data. Buying data through data brokers is currently legal in the United States, and that reflects a gap in our national security toolkit that we are working to fill with this program."

The EO fact sheet is vague, but states the Biden administration will ask the The Departments of Justice, Homeland Security, Health and Human Services, Defense, and Veterans Affairs, to all work in concert to ensure problematic countries aren't able to buy large scale" data repositories filled with U.S. consumer data, and to pass new rules and regulations tightening up the flow of data broker information.

We've noted for a long, long time that our corrupt failure to pass a privacy law or regulate data brokers was not only a frontal assault on consumer privacy, it was easily exploitable by foreign intelligence agencies looking to build massive surveillance databases on American citizens.

It's why it was bizarre to see lawmakers myopically fixated on banning TikTok, while ignoring the fact that our corrupt policy failures had made TikTok's privacy issues possible in the first place.

You could ban TikTok tomorrow with a giant patriotic flourish to fix privacy," but if you're not willing to rein in the hundreds of sleazy international data brokers doing the same thing (or in some cases much worse at even bigger scale), you haven't actually accomplished much beyond posturing to get on TV.

The EO sounds at least like a first step (depending entirely on the implementation), but is filled with some flowery and revisionist language. This bit, for example:

These actions not only align with the U.S.' longstanding supportfor the trusted free flow of data, but also are consistent with U.S.' commitment to an open Internet with strong and effective protections for individuals' privacy and measures to preserve governments' abilities to enforce laws and advance policies in the public interest."

Again, we don't have a privacy law for the internet era in 2024 not because it was too hard to write one, but because Congress is too corrupt to pass one. We have, repeatedly, made the decision to prioritize the profits of an interconnected array of extractive industries over the public welfare, public safety, and even national security.

The result has been a massive, interconnected, hyper-surveillance market that hoovers up data on your every fart down to the millimeter, bundles that data up in vast profiles, and monetizes it across the globe with very little if any real concern for exploitation and abuse. All under the pretense that because much of this data was anonymized" (a meaningless, gibberish term), there could be no possible harm.

The result has been just a rotating crop of ugly scandals that have gotten progressively worse. All while we (mostly) sat on our hands whining about TikTok.

The FTC has been cracking down on some location data brokers, but generally lacks the resources (by design) to tackle the problem at the scale it's occurring. They lack the resources because the over-arching policy of the U.S. government for the better part of the last generation has been to defund and defang regulators under the simplistic pretense this unleashes untold innovation (with no downside).

This myopic view of how government works is all pervasive in America, and has resulted in most corporate oversight in the U.S. having the structural integrity of damp cardboard. And it's all about to get significantly worse courtesy of a handful of looming Supreme Court rulings aimed at eroding regulatory independence even further. There's a very real cost for this approach, and the check has been, and will be, increasingly coming due in a wide variety of very obvious and spectacular ways.

But we also don't have a privacy law and refuse to regulate data brokers because the U.S. government benefits from the dysfunction, having realized long ago that the barely regulated data broker market is a great way to purchase data you'd otherwise need to get a warrant to obtain. Data broker location data is now tethered tightly to all manner of U.S. government operations, including military targeting.

The press has also played a role in failing to educate the public about the real risks of failing to regulate data brokers or pass a privacy law. Just 23 percent of the U.S. public even knows the government has failed to pass a privacy law for the internet era. And when the U.S. press does cover privacy, the fact that rank corruption is at the heart of the dysfunction is routinely never mentioned.

So yes, it's great that we're starting to see some growing awareness about the real world costs of our corrupt failures on privacy policy. Senator Ron Wyden, in particular, has been doing an amazing job sounding the alarm on how this failure is being exploited by not just a diverse array of self-serving companies, but a surging authoritarian movement in the post-Roe era.

But it's going to take a hell of a lot more than an EO to course correct. It's going to take shaking Congress out of its corrupt apathy. And the only thing I think will accomplish that will be a privacy scandal so massive and unprecedented (potentially including mass fatalities or the leaking of powerful figures' data at unprecedented scale), that elected officials have absolutely no choice but do do their fucking job.