A Data Privacy Watchdog
Feb 20, 2019


The U.S. Government Accountability Office (GAO) issued a report recommending that Congress develop internet data privacy legislation to enhance consumer protections, similar to the EU's General Data Protection Regulation (GDPR). The GAO is a bi-partisan government agency that provides auditing, evaluation, and investigative services for Congress.  This week, we take a closer look at the report and its initial recommendations. 



The 56-page report states, “[r]ecent developments regarding Internet privacy suggest that this is an appropriate time for Congress to consider comprehensive Internet privacy legislation.”  The authors recommend, “[c]omprehensive legislation addressing Internet privacy that establishes specific standards, but also recommends notice-and-comment rulemaking to substantiate the rules."  The GAO report also calls for civil penalties to help enhance the federal government's ability to protect consumer privacy, provide more certainty in the marketplace as companies innovate, and develop new products using consumer data.



The GAO delivered its report to the House Energy and Commerce Committee.  Energy and Commerce Chairman Frank Pallone, Jr. (D-NJ), who requested the report in 2017, said this week, the “GAO report makes clear now is the time for comprehensive congressional action on privacy that should include ensuring any agency that oversees consumer privacy has the tools to protect consumers.”  The Energy and Commerce Committee scheduled a hearing for February 26 to discuss GAO's findings and the possibility of drafting the nation’s first federal-level internet privacy law.



At the agency level, the GAO recommends that the Federal Trade Commission (FTC) oversee internet privacy enforcement.  The FTC has already been doing this, to a limited degree, intervening in 101 internet privacy-related cases.  The GAO argues that a new law should give the FTC more power to pursue user privacy abusers.  The GAO’s recommendation for enforcement measures comes on the heels of the first fines imposed under GDPR.  We will keep a close eye on these developments.


Specialty Liability Lines


The Pennsylvania Supreme Court temporarily set aside its contentious proposal to ease 17-year-old restraints on medical malpractice lawsuits.  A rules committee of the state’s high court  is considering a proposal to undo an early 2000s rule that requires medical malpractice lawsuits to be filed in the county where the alleged injury occurred.  This week, in a letter to the State Senate, the high court informed Pennsylvania Senate leaders it accepted their request to postpone action on the rule. The State Senate, along partisan lines, passed a resolution asking the court to delay a decision on the policy change until year’s end to allow for a legislative study.



Lawmakers in the United Kingdom are preparing the nation’s product liability laws for an impending Brexit.  Lawmakers submitted a draft statutory instrument amending product liability and safety laws before Parliament for approval this week.  The measure, The Product Safety and Metrology, etc. (EU Exit) Regulations 2019 is due to come into force on the day of Brexit. The measure would ensure that current EU requirements relating to product safety and labeling in the UK are amended to apply to products on the market in the UK once the UK is no longer in the EU. 


Making Our Way Around the Country



Justice Department lawyers asked a federal appellate court in Ohio to reverse a class-action settlement that gives consumers $72.50 coupons for pressure cookers, but pays millions of dollars to lawyers.  The Trump administration used an infrequently cited, but valid statutory authority to criticize a law class-action lawsuit. Observers say the DOJ objections signal a more aggressive approach from federal lawyers in intervening in consumer-focused cases.  We will keep tracking this trend.



The Georgia Supreme Court struck down a provision of state law that allows a person’s refusal to submit to a breath test in a DUI stop could be used as evidence of guilt.  The state Supreme Court decision said that a person’s right against self-incrimination under the Georgia Constitution prevents prosecutors from bringing up in trial a person’s refusal to blow into a breathalyzer.  In its opinion, the justices acknowledged that the decision “may well have implications for the continuing validity of the implied consent notice as applied to breath tests, but revising that notice is a power reserved to the General Assembly.” 



Lawmakers on the House Education and Labor Committee introduced the Protecting America's Workers Act, a bill to expand OSHA coverage.  The measure would take a number of steps to protect workers, including the expansion of coverage to state employees (in 25 states) and federal employees across the country.  The measure would also mandate that employers correct hazardous conditions while a citation for a serious, willful, or repeat violation is being contested, improve whistleblower protections, and authorize felony penalties against employers who knowingly commit OSHA violations. 



A new California Workers' Compensation Institute (CWCI) study finds that non-steroidal anti-inflammatories (NSAIDs) overtook opioids as the most common therapeutic drug group prescribed to injured workers in California.  Using data from 5.75 million prescriptions dispensed to California injured workers from 2009 to June 2018.  The CWCI found that efforts to curb inappropriate use of opioids, including increased utilization review; restrictions in the Medical Treatment Utilization Schedule (MTUS) formulary; and growing awareness of opioid risks have positive effects on continuing opioid use.  Opioids fell to 18.0% of the prescriptions filled in the first half of 2018, down from 20.2% in 2017, and down from 30.5% a decade ago. 



Back to our main story this week, following the GAO report, the House Energy and Commerce Committee is expected to add some bark and bite the FTC as the nation’s watchdog for consumer cyber privacy issues.  And in related news, all of us at The Way will be watching dogs that do not bark or bite today as we celebrate #NationalLoveYourPetDay.  Here’s to some of our most loyal and supportive fans of The Way. 


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