New Federal Privacy Law TRACED: The Telephone Robocall Abuse Criminal Enforcement and Deterrence Act 

Congress recently passed the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (“TRACED”) with overwhelming support.  The TRACED privacy act is new federal legislation that is directed at decreasing unwanted robocalls. 

TRACED Allows for Greater Enforcement Powers with a Focus on Identification and Blocking

The new federal law extends the Federal Communications Commissions’ (“FCC”) statute of limitations on robocall offenses and similarly increases the potential fine amount.  It also calls for the FCC to make more rules that help protect consumers from robocalls and texts.  The TRACED privacy act also calls for an FCC report on enforcement and requires adoption of a timeline for preventing call spoofing.

Likewise, a much-lauded provision of TRACED prohibits call carriers from charging for services that prevent spoofing.  On the enforcement side, the TRACED privacy act also requires the attorney general to create a task force to prosecute offenders while leaving a door open to the Justice Department to also prosecute offenders.

Further, TRACED calls for more cooperation between the FCC and state attorneys general.  Before the TRACED privacy act was passed, without clear federal preemption, it was often difficult to determine whether federal or state laws were to be consulted regarding such privacy concerns.

Empowerment and Congressional Oversight Established in TRACED Privacy Act

TRACED provides clear notice that Congress and federal powers are to control when it comes to call blocking and robocalls.  Moreover, Congress has specifically included a provision in TRACED that allows Congress to modify or amend the law as is necessary when technology improves.  Experts hope that this foresight by Congress in drafting the TRACED privacy act will be included in other legislation because technology has increasingly impacted other industry fields and sectors.  In other words, caveats carved out for improvements in technology no longer belong in the technology field alone. 

Moreover, privacy experts note that TRACED calls for Congressional oversight and guidance in privacy legislation, which is a departure from the norm.  In the past, the FCC often operated and passed federal guidelines without any Congressional oversight.  The TRACED privacy act, however, requires an annual report to be made to Congress, and the contents of the report will be available to the public.

TRACED Privacy Act Could Be Next Step in US Trend Toward Stricter Privacy Laws 

Privacy experts hope that TRACED, coupled with the overwhelming support for the California Consumer Privacy Act, will encourage Congress to pass more legislation focused on privacy.  As American companies have already acclimated to the stricter standards of the European Union’s General Data Protection Regulation, many privacy experts note that the success of TRACED, which is yet to be seen, may convince Congress that stricter privacy laws are achievable if TRACED is successful.

Key Takeaways from the TRACED Privacy Act

TRACED is still a new federal law and has yet to provide true insight on how similarly drafted legislation could be successful in curtailing robocall abuse and assisting with privacy concerns.  However, the passing of such law and the provisions as written suggest that:

• Congress can be included as federal oversight in privacy laws;

• caveats for technology improvement should be included in all new privacy-focused legislation as laws will need to evolve with technology;

• the FCC may benefit from guidelines provided by Congress; and

• state attorneys general and federal enforcement agencies should work together in enforcement efforts.

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