Christine Jordan Sexton – September 16, 2021

Sprowls already tackled DNA privacy, but he’s not done.

Florida lawmakers appear poised to wage another bruising battle over data privacy in 2022, as House Speaker Chris Sprowls vows to push through a measure that would put pressure on tech companies when it comes to sharing valuable information they collect on customers.

Earlier this year, Republican-friendly interest groups lined up in opposition to a Sprowls-pushed bill, but the Palm Harbor Republican isn’t walking away from the fight. Sprowls has been in some of these battles before, like in 2020 when he pushed through a measure dealing with how life insurance companies use DNA information, and he is used to winning.

The goal, the Speaker says, is to ensure Florida’s laws aren’t lagging when it comes to consumer privacy and to enact a new policy to “get ahead of the game.”

“I am very interested — I think the House is very interested — in data privacy and making sure we get it right so that we are protecting people’s data and making sure that they are empowered on how their data is used and monetized,” Sprowls told Florida Politics.

After working to pass a DNA privacy law for three years, Sprowls now wants the Florida Legislature to pass a comprehensive data privacy bill that gives Florida internet users more control over the data companies aggregate on them and what can be done with the data. Sprowls also wants to empower consumers to sue companies that violate the law.

“This is the new frontier of privacy. Before, a lot of our laws about privacy dealt with the papers in our briefcase,” the Speaker said. “Well, that’s not the real risk of privacy nowadays. It’s the data on our phone. It’s the monetizing of our genetic information without our permission.”

There is no federal law governing internet users’ privacy information. The Federal Trade Commission first recommended Congress pass baseline protections in 2000. Included in the FTC report were recommendations that companies be required to provide customers a choice as to whether they agree information can be shared, as well as provide consumers reasonable access to the information, including the ability to correct inaccuracies or delete information.

While Congress has not acted, California, Virginia and Illinois have enacted privacy laws. Sprowls last Session unsuccessfully championed legislation that would have given Florida internet users more control over their personal data, much along the lines of what the FTC first recommended 20 years ago.

Sprowls’ bill also would have allowed Florida consumers to sue companies that violated their rights.

But Florida Justice Reform Institute President William Large sees things differently.

Large’s group will lobby against any provision in any bill that would create a new opportunity for people to sue Florida businesses. He also lobbies for business-friendly litigation changes.

“I would coin this the ‘jobs program for class-action plaintiff’s attorneys,’” Large said. He underscores his point with a recent legal analysis of the impact of California’s data privacy law, which also has a private cause of action for consumers whose rights have been violated.

Conducted by the insurance defense law firm Akin Gump Strauss Hauer & Feld, the analysis shows that 76 class-action lawsuits had been filed in California state and federal courts in 2020.

This isn’t Sprowls’ first tangle with the insurance lobbyist over privacy issues, though.

The lawyer and former prosecutor first took on the life insurance industry in 2018 and 2019 when behind the scenes, he pushed for bills that would have prevented life insurance, disability, and long-term care insurance carriers from using DNA information to price policies or to cancel policies based on data from 23andMe and AncestryDNA.

Sprowls didn’t sponsor the bill either year, though; Rep Jason Brodeur sponsored the proposal in 2018, and Rep. Jayer Williamson filed the bill in 2019.

Sprowls filed the DNA privacy bill in 2020 and subsequently rolled over the American Council of Life Insurers and other industry lobbyists who warned Florida would be the only state in the nation to ban companies from using the DNA data. If passed, opponents argued, it would increase the cost of insurance for healthy consumers. Insurers, proponents argued, would stop writing policies in Florida.

The ACLI declined to comment for this story. But Sprowls says their argument doesn’t hold.

“I can fly to Atlanta, go in the airport, never leave, and buy life insurance in the airport and then fly home,” he said.

Long-time insurance lobbyist Mark Delegal was at odds with Sprowls over the DNA privacy law and will be at odds with the Speaker over the data privacy bill. Delegal said the bill created a cottage industry for lawyers who would squabble over small amounts of money.

“The only winner in that equation are the lawyers who will grind away at an infinite number of hours over pennies for a consumer,” Delegal said. “And the only winner who comes out is a lawyer collecting fees for that.”

In place of a private right of enforcement, both Large and Delegal say the Department of Legal Affairs, and not consumers, should be empowered to sue businesses, which was the Florida Senate’s position in its version of the bill.

Gov. Ron DeSantis and Lt. Gov. Jeanette Nuñez stood by Sprowls’ side during a February news conference announcing the data privacy bill in the House. But after business interests lobbied the Governor’s office, sources say, the executive branch backed off its support, ultimately leading to the bill’s demise.

Sprowls, though, denied the civil enforcement provision in the bill killed it.

“I think the stumbling block had to do with enforcement generally,” Sprowls said. “What is the kind of enforcement that allows there not to be perversion in the system, people doing frivolous things to harass, versus people who are empowered to make sure that their data is protected and what’s their hook if something goes wrong or if somebody does something they’re not supposed to be doing?”

Meanwhile, Florida’s business interest groups have been anticipating another fight over the data privacy bill and the inclusion of a private cause of action and are starting to prepare for the legislative battle.

To that end, Associated Industries of Florida and NFIB Florida co-hosted a three and a half-hour meeting Aug. 25 in Orlando on Sprowls’ privacy proposal, along with the Florida Credit Union Association, the Florida Bankers Association, the Florida State Hispanic Chamber of Commerce, the Florida Insurance Council, Florida Internet & Television, the Florida Restaurant & Lodging Association, the Florida Retail Federation and Florida TaxWatch.

“I think it was altogether appropriate for more people to become aware of what this means since this was left at the doorstep last year,” said NFIB Florida Executive Director Bill Herrle, who said about 50 people attended the meeting, which was offered both in-person and virtually.

”We have concerns about the issue,” Herrle said. “We have concerns with the overall impact.”

https://floridapolitics.com/archives/456231-data-privacy-is-new-frontier-for-chris-sprowls-to-tackle/ 

 

Sunburn — The morning read of what’s hot in Florida politics — 8.27.21

Peter Schorsch – August 27, 2021

The Florida Supreme Court adopts new civil procedure rule — The Supreme Court on Thursday adopted an amendment to Florida Rule of Civil Procedure, effective immediately, expressly adopting the “apex doctrine” in both the government and corporate contexts. The apex doctrine protects companies from plaintiffs’ attorneys demanding that their presidents, CEOs, or top officers sit for a deposition. The issue came to the Court as a question of great importance from the 1st District Court of Appeal. William Large, president of the Florida Justice Reform Institute, said, “By adopting first the Daubert evidence standard, then the federal summary judgment standard, and now the corporate apex doctrine through separate rule cases, the Court has expressed a clear willingness to address the problems facing Florida’s civil justice system through broad rule changes that apply even to pending matters.”

https://floridapolitics.com/archives/453181-sunburn-the-morning-read-of-whats-hot-in-florida-politics-8-27-21/ 

 

April 20, 2021

The proposals deal with the Florida Birth-Related Neurological Injury Compensation Association.

As the 2021 legislative session nears the end, the Florida House and Senate are tackling medical malpractice, with lawmakers moving forward with bills that would change a longstanding no-fault insurance program for infants with neurological injuries.

The proposals deal with the Florida Birth-Related Neurological Injury Compensation Association, widely known as NICA, that was set up in the 1980s to pay for care of children born with brain or spinal-cord injuries. The program has drawn heavy attention recently because of  a series of stories in the Miami Herald.

The House and Senate bills have differences, but they both contain provisions that representatives of NICA and the insurance industry say are problematic.

The House Judiciary Committee on Monday put an amendment on its bill (HB 1165) that would require the state Agency for Health Care Administration to develop policies making clear that NICA is a third party responsible for payment of services and that Medicaid is the payer of last resort. The change would apply retroactively and direct the agency to determine how much money Medicaid could recoup from NICA.

Steve Ecenia, general counsel for NICA, said the retroactive application would be a problem because it could affect a lawsuit pending at the 11th U.S. Circuit Court of Appeals.

“If the Legislature wants to make a decision and treat NICA differently prospectively, that’s your prerogative to do. I would just plead with you not to take action that could potentially cost hundreds of millions of dollars to the NiCA program, potentially put it in financial jeopardy and really derail where we are trying to go,” Ecenia said.

The House bill would raise the payment from $100,000 to $250,000 for parents or legal guardians of infants who sustained birth-related neurological injuries. That would apply to petitions of claims filed since the beginning of this year. The bill would raise the death benefit for an infant who suffered a neurological injury from $10,000 to $50,000.

The Senate Appropriations Committee, meanwhile, approved a bill (SB 1786) on Monday that also contains a provision about Medicaid third-party liability, though it is not identical to the House version.

But the Senate  bill also would eliminate NICA effective Dec. 31, 2026, unless the Legislature passes a law to re-enact the program. That move — known as a “sunset” — drew concerns from the insurance industry.

“Those of you who have been around a few years know that tort reform is extremely, extremely difficult. If you put the termination provision in, the ability to get it back will be World War III … Once that sunset sets in, it’s armageddon.” said lobbyist Mark Delegal, whose clients include The Doctors Company, which provides medical-malpractice coverage for physicians.

NICA was created by lawmakers in 1988 as a no-fault system to pay for the care of children so long as the physicians participate in NICA and pay yearly assessments. Participating physicians are required to pay $5,000 each year for coverage, and all licensed Florida physicians pay a mandatory fee of $250, regardless of specialty.

Hospitals pay $50 for each live birth during the previous calendar year. In 2019, NICA collected $26,989,960 in hospital and physician assessments; in 2020, NICA collected $27 million, according to a legislative staff analysis.

Another provision in the Senate bill that Delegal and William Large, president of the Florida Justice Reform Institute, oppose would say it is not the intent to “shield physicians who engage in willful misconduct, gross negligence, or recklessness or to preclude individuals from filing legitimate claims of medical malpractice against such physicians.”

Delegal said that proposed change is a “clear shift” in policy and said NICA would not survive because it would encourage litigation.

Like the House bill, the Senate version would increase the death benefit to $50,000 and would up the parent or guardian award to $250,000 for claims filed after Jan 1. But the Senate bill would direct NICA to make retroactive payments to parents or guardians who received awards before this year.

NICA Executive Director Kenny Shipley told members of the House Judiciary Committee that there’s “another side to this story than what you saw come out of the Miami Herald.”

_____

Republished with permission from The News Service of Florida.

https://floridapolitics.com/archives/422022-lawmakers-weight-changes-in-program-for-injured-infants/ 

 

Renzo Downey – April 6, 2021

Changes made Tuesday lost the bill support from Democrats.

A less onerous version of legislation protecting internet users’ data privacy is on its way to the Senate floor.

The measure (SB 1734), carried by Fleming Island Republican Sen. Jennifer Bradley, would give consumers the right to control how their personal online data is shared and sold. That data helps businesses know more about individual consumers and helps make things like targeted ads possible.

Bradley reworked the bill, titled the Florida Privacy Protection Act, with amendments adopted Tuesday to shrink the scope of the planned legislation that has been identified as a priority of Gov. Ron DeSantis

“The internet of today is a one-way street where the most intimate details of a consumer’s life, usually unbeknownst to the consumer, are monitored and sold to the highest bidder,” Bradley said. “The financial success of these companies who market our private lives are built on the consumers’ lack of knowledge and lack of consent to this process.”

With the latest changes, the proposal would only apply to businesses that annually buy, sell or share the personal info from 100,000 or more users or that generate at least 50% of its global annual revenue from selling or sharing personal information about consumers. Businesses that operate within federal industry requirements, such as banking and health care, would be exempt.

Bradley also settled on July 1, 2022 as the effective date for the proposal’s provisions.

As with the original bill language, adult consumers could opt out to having their data sold, while minors would have to opt in. Users could also opt out of targeted advertising.

It would require businesses, if asked, to share what info they have, how they got it, and how they use it.

Bradley’s amendment also eliminated a provision that would have let private individuals file lawsuits for violations to the state law. Instead, the onus would now fall on the Attorney General’s office.

That fixed concerns from legal groups, including Florida Justice Reform Institute and its President, William Large, who feared the bill’s broad language on personal information could lead to potential class action lawsuits. However, the reworked language drew opposition from Democrats on the panel.

The original Senate bill and the House version (HB 969), carried by Sarasota Republican Rep. Fiona McFarland, drew comparisons to California’s internet privacy law. That state’s data privacy provisions cost businesses $55 billion, according to one estimate. But Bradley said the new version would touch far fewer companies.

St. Petersburg Republican Sen. Jeff Brandes still had concerns about the legislation’s cost on businesses. And with the new thresholds for the bills to kick in, he feared some companies might intentionally remain within those boundaries to avoid regulation.

He feared the complex amendment filed the day before the committee was problematic for the panel to approve.

“For a state that values certainty in business … this bill is, to me, full of uncertainty, because all 20 of us, if cornered, would provide you radically different answers of what this bill does,” Brandes said.

However, Bradley defended the changes.

“The only certainty in this area is we have businesses who are collecting unknown amounts of information about Florida consumers,” she said. “They are selling it and they are monetizing it, and that is for certain, and I don’t share the confidence that the federal government is going to step in in a timely manner and shore up the protections for Floridians.”

The bill would add biometric data to the list of protected information. That builds off of Sprowls’ bill, which DeSantis signed into law last year, making Florida the first state to guarantee DNA privacy for customers’ life, disability, and long-term care insurance.

McFarland’s bill awaits a hearing in its final committee, the House Commerce Committee.

https://floridapolitics.com/archives/417696-dialed-back-internet-privacy-protection-act-heads-to-senate-floor/ 

 

Renzo Downey – March 10, 2021

Gov. Ron DeSantis is backing the Big Tech accountability bill that is drawing comparisons to California.

Over opposition from business and legal groups, a House panel gave its unanimous approval to a bill to protect internet users’ data privacy.

That measure (HB 969), filed by Sarasota Republican Rep. Fiona McFarland, would give consumers the right to control how their personal data is shared and sold. That data helps businesses know more about individual consumers and help make things like targeted ads possible.

The proposal is a priority of Gov. Ron DeSantis and House Speaker Chris Sprowls, announced as part of their plans this Session to combat Big Tech, both in social media and on consumer privacy.

The social media half of that package has drawn opposition, mainly from Democrats. But McFarland attempted to distance her bill from that mostly partisan effort during the Wednesday House Regulatory Reform Subcommittee meeting.

“This bill is purely about a Florida consumer who through interacting with a for-profit business online hands over troves of personal, very intimate information about themselves that could reasonably be used to identify them,” McFarland said, “whether that be their name, address, phone number or things like their IP address or their browsing history or even that they’re classified as a 30-something, White, heterosexual female with a college degree.”

Committee members passed the measure out of its first committee stop by a unanimous vote.

The bill would require businesses to publish a privacy policy and tell consumers, if asked, what data they have on them, how they got it, and how they use it. Consumers could ask to have that information deleted or corrected.

Consumers could opt out of having their data sold or shared. Minors would have to opt in for data sharing.

The bill would add biometric data to the list of protected information. That builds off of Sprowls’ bill, which DeSantis signed into lawlast year, making Florida the first state to guarantee DNA privacy for customers’ life, disability, and long-term care insurance.

The Attorney General would have the power to enforce intentional and unintentional violations of the bill.

McFarland told the committee she enjoys targeted ads and finds them helpful. However, she highlighted one case of a minor who had not told her parents she was pregnant, but her household received baby formula through targeting.

“That is to me where it stops being useful and starts being very invasive when companies know us better than we and our family know one another,” she said.

McFarland told the committee she has worked with and continues to work with industry specialists both for and against her proposal. She is pulling ideas from Europe and states like California and Virginia and building off of them to create a “uniquely Floridian version.”

Businesses are concerned the strict regulations and January 2022 implementation date could overly burden Florida businesses. Even restaurants with mailing lists, as Merritt Island Republican Rep. Tyler Sirois mentioned.

The bill would touch every single Florida resident and business, committee Chair Rep. Bob Rommel cautioned.

McFarland said she was aware of the additional efforts businesses would have to take to maintain compliance and added she doesn’t want to halt innovation. But making it easier for businesses would be “giving up” on the rights of consumers.

The bill would also allow businesses to charge consumers for denying them information to compensate for missing out on selling personal data, if the businesses could prove those losses.

The Representative said some companies could decide to absorb the costs as the right thing to do and the cost of doing business. She conceded that some businesses would certainly shift costs to consumers, but many users would accept the additional fees.

“They are OK with understanding that if their data is better protected or more in their own control then perhaps that would be a handoff that they are willing to either pay slightly more for or have a different user experience,” McFarland said.

However, Cape Coral Republican Rep. Mike Giallombardo, a tech entrepreneur with experience in cybersecurity, didn’t foresee a huge cost for businesses. Many security and privacy mechanisms already exist, he told the committee.

“It is not that difficult to be in compliance these days with cloud services like Azure, AWS, Red Hat,” Giallombardo said. “A lot of times, the access control is the only thing that the business needs to really comply by.”

Among those in support of the measure were CFO Jimmy Patronis. In a statement after the committee, he thanked the Governor, Sprowls and McFarland for prioritizing holding Big Tech accountable.

“There’s nothing more valuable to a person than one’s own identity, and Big Tech has figured out a way to cash-in while leaving the consumer in the dark,” he said. “Floridians deserve to have their data protected and I’m proud to support House Bill 969, it’s good for Florida consumers, good for small businesses and most importantly, it’s the right thing to do.”

Florida Justice Reform Institute President William Large said the bill’s current definition of personal information is more expansive than California’s.

“If a group of hackers hack a business, and it gets out that I buy Crest toothpaste, normally that would be a big so what, but under the private cause of action’s penalties, and there’s a million people hacked, that could result in a potential class action worth $750 million, and that’s the problem with this bill,” he told the committee.

With comparisons to California, lawmakers’ perennial boogeyman, and its existing law, McFarland offered a defense of the Golden State’s business climate.

“The sky does not appear to have fallen in the state of California,” she said.

The bill next advances to the House Civil Justice & Property Rights Subcommittee. Fleming Island Republican Sen. Jennifer Bradley‘s version (SB 1734) has not been scheduled for its first hearing.

https://floridapolitics.com/archives/411001-data-privacy-bill-gets-unanimous-approval-in-first-hearing