Partner Mark Sableman co-authored a recent article in the National Law Journal warning against sweeping legislation targeting data privacy. The article, “A B-to-B Carve-Out in Privacy Legislation,” appeared in the April 22 issue of the National Law Journal, in a special edition on privacy.
The current debate about “big data” too often overlooks critical distinctions between different kinds of data, Sableman writes. Specifically, it ignores the differences between data exchanged in the business-to-consumer market and that exchanged in the business-to-business market. The B-to-B market is substantial and includes such major companies as McGraw Hill, Thompson Reuters, and Dow Jones, which all deal in data collection, transfer, and use.
“While privacy is a legitimate concern for individual consumers who participate in the B-to-C marketplace, it is a somewhat alien concept in the B-to-B world, where all participants act in their business capacities,” Sableman wrote in the article, co-authored with Tom Carpenter, Vice President of Wexler Walker Public Policy Associates in Washington, D.C.
It’s the difference between a consumer shopping online at Macy’s, and an electrical engineer visiting the Engineering News-Record’s website for information on an upcoming education seminar, the article states.
To counteract the negative effects of such a law on purveyors of business-to-business information, Sableman and Carpenter propose a business-capacity exemption in any future data privacy legislation. Such an exemption could be achieved by limiting any data privacy legislation to activities involving consumers, with “consumer” defined as “an individual acting in the individual’s personal, family or household capacity.”
“This definitional and scope clarification would limit the legislation to its intended purpose — consumer protection — and ensure that B-to-B communications were not improperly covered or chilled."
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