Recently, the Federal Communications Commission (FCC) clarified that a call made using artificial or pre-recorded voice to a residential telephone line for the SOLE purpose of identifying individuals to participate in a clinical trial is exempt from the Telephone Consumer Protection Act (TCPA) “prior express written consent” requirement, provided that:

  • The call does not include any advertisement or telemarketing.
  • The caller does not make more than three of these clinical trial calls to one individual in any consecutive 30-day period.
  • The caller allows the individual to opt-out of receiving future calls about the clinical trial.

This clarification came in response to a petition from Acurian, Inc. (Acurian), a provider of clinical trial patient recruitment and retention solutions for life sciences. Acurian’s calls are made using a pre-recorded voice message offering introductory information about the clinical trial opportunity and about receiving a live follow-up call with a physician overseeing the trial. Acurian’s petition stated that it should be exempt from TCPA requirements because the calls it makes, even though they are pre-recorded:

  • Are not made for a commercial purpose.
  • Do not, and are not intended to, encourage the called party to engage in a commercial transaction.
  • Are analogous to the purely research calls that the FCC has already deemed exempt.

The FCC granted Acurian’s petition, saying that it did not need to research the question of whether the calls were commercial because the communications lacked advertising, and the calls did not offer a free service part of an overall marketing campaign (which would potentially need to meet the TCPA’s “prior express written consent” requirement).

This decision suggests that the FCC is open to the use of pre-recorded calls to residential lines without first obtaining written consent, provided they offer free opportunities and do not market or sell products or services.

How will a Biden-Harris presidency affect the U.S. privacy landscape? Let’s take a look.

Federal Privacy Legislation

On both sides of the political aisle there have been draft proposals in the last 18 months on federal privacy legislation. In September, movement actually happened on federal privacy legislation with the U.S. Setting an American Framework to Ensure Data Access, Transparency and Accountability Act. To read the bill, visit https://www.billtrack50.com/BillDetail/1242877.

With a Biden-Harris administration, there is potential for continued movement on federal privacy legislation. This movement would likely come from Congress since both the Republicans and Democrats have previously supported (and are pushing for) privacy bills.

E.U.-U.S. Privacy Shield and Data Transfers

With the 2020 “Schrems II” decision  looming over international data transfers, the Biden-Harris administration is likely to pave the way for negotiations with the European Commission for a new version of the Privacy Shield. However, the Schrems II ruling will continue to be a real challenge. The hope is that there can be effective, productive dialogue with the E.U. and that the U.S. can convey the fact that there is a mutually beneficial relationship with intelligence agencies in the U.S. and member states of the E.U.

FTC Enforcement and FCC Rules

During Chairman Joseph Simons’ tenure, the Federal Trade Commission (FTC) has been very active on privacy issues. Examples include the FTC’s enforcement actions against Facebook, Google and YouTube, as well as the Children’s Online Privacy Protection Act (COPPA) rulemaking proceeding held in 2019. Just this past week, the FTC announced a settlement with Zoom for alleged data security failings. While the FTC was certainly busy under a Republican-led agency, it is likely that we will see a heightened level of scrutiny and more enforcement under a Biden-Harris administration. While Chairman Simons can serve until 2024, he might step down, and it is also likely that the FTC will gain more Democratic commissioners.

For the Federal Communications Commission (FCC), a Biden-Harris administration may also lead to a revival of the net neutrality rules.

Cybersecurity

Many experts agree that cyber-attacks are the number one national security threat in the U.S., both from a geopolitical and an economic standpoint. A recent report, the Cyberspace Solarium Commission report, states that one of the biggest reasons for continued cybersecurity issues in the U.S. is the failure of strategy and leadership in this arena, and that now is the time for greater accountability of the government to defend against cyber-attacks.

Big Tech and the U.S.’s International Relationships

There has been a lot of scrutiny on how a Biden-Harris administration will regulate Big Tech in Silicon Valley. Biden has already pledged to create a task force for investigating online harassment, extremism and violence, so it is likely that there will be a focus on privacy, surveillance and hate speech online through some of the Big Tech players in Silicon Valley. We may also see some shifts in the U.S.’s relationship with China when it comes to privacy.

Of course, none of this change will happen overnight, so we’ll be watching as the train chugs forward.