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The SHOP SAFE ACT Makes an Ignominious Return

by David B. McGarry

In a year replete with reanimated bills that privacy-conscious lawmakers killed during the 117th Congress, Sen. Chris Coons (D-Del.) once again has introduced the SHOP SAFE Act. The bill would expand the liability website owners bear for trademark infringement allegedly perpetrated by third-party sellers on their marketplaces.

This provision alone would cause havoc for online commerce. And, the bill also threatens Americans’ online privacy because it would push platforms to gather such sensitive data as government IDs from sellers, creating veritable treasure troves for hackers. It would also push platforms to make public sellers’ personal information, which easily could transform subpar digital privacy into a deadly safety risk in the physical world – particularly for smaller third parties. (Regulation remains almost invariably regressive.)

Legislators rejected the SHOP SAFE Act last year, instead passing the more moderate INFORM Act. As Eric Goldman, professor of law at Santa Clara University, notes, the INFORM Act “was designed to redress the same concerns as the SHOP SAFE Act, and it just became effective a few months ago. What have we learned since then? Did the INFORM Consumers Act make a difference or not? If so, why do we need the SHOP SAFE Act?”

Nonetheless, it appears that some in Congress seem intent on compromising Americans’ privacy to achieve ancillary policy victories. Recent reporting has reinforced the unavoidable reality that cybercriminals regularly breach the defenses even of governments and corporate behemoths. This year’s victims include the U.S. Department of Energy, multiple state governments and major universities, Las Vegas casinos, Shell Global, and many more.

The proven vulnerabilities of the strongest cyber-defenses ought to pause policy makers who wish to weaken their constituents’ online privacy.

Published on October 17, 2023