In June of 2022, the House Committee on Energy & Commerce introduced the American Data Privacy and Protection Act (ADPPA). Among other categories of data, the bill purported to restrict the use of publicly available information (PAI). In particular, it purported to subject inferences made from that information to a variety of restrictions.

In our view, an inference made from information in the public domain is protected by the First Amendment.  SIIA commissioned former Solicitor General Seth P. Waxman to examine the constitutionality of restricting PAI under the First Amendment. The memo makes clear not only that the creation and dissemination of information is speech for First Amendment purposes, but that inferences derived from it are as well. As a result, government regulation of that activity must pass heightened judicial scrutiny, and the regulations proposed in the ADPPA were unconstitutional.

The memo also reveals the societal benefits of the constitutional public domain in the context of a larger data privacy framework. The free flow of information advances important public interests for regulated entities, consumers, citizens, businesses, and the entities they aid.

We are publishing this memo now, in full, because its conclusions and cautionary note remain as relevant today as they were two years ago. In 2025, states across the country are considering legislation that would run afoul of the First Amendment protections for PAI and inferences derived from PAI, and Congress has resumed efforts to craft a national consumer privacy law. We are hopeful that this memo will provide guidance to lawmakers in crafting legislation that achieves the goal of consumer privacy without sacrificing core American values.