Strengths and Weaknesses of Notice and Consent Requirements under the GDPR, the CCPA/CPRA, and the FCC Broadband Privacy Order

Abstract

We compare the notice and consent requirements of the three recent privacy regulations that are most likely to serve as the starting points for the creation of a comprehensive consumer privacy bill in the United States: the European General Data Protection Regulation, the California Consumer Privacy Act / California Privacy Rights Act, and the Federal Communications Commission’s Broadband Privacy Order. We compare the scope of personal information under each regulation, including the test for identifiability and exclusions for de-identified information, and identify problems with their treatment of de-identified information and of pseudonymous information. We compare notice requirements, including the level of required detail and the resulting ability of consumers to understand the use and flow of their personal information, and identify deficiencies with consumers’ ability to track the flow of their personal information. Finally, we compare consumer choices under each regulation, including when a consumer must agree to the use of their personal information in order to utilize a service or application, and find that none of the regulations take full advantage of the range of options, and thereby fail to disincentive tracking.