Revived Legislative Bill Adds New York to Growing Number of States Seeking to Tax Big Techs Digital Advertising and Sales of Consumer Personal Data -…

In 2017, Saadia Madsbjerg, Managing Director of the Rockefeller Foundation, reflected on the billions of dollars in economic value generated each year from corporations buying and selling consumer personal data, and posited why the imposition of a tax on the revenues of companies that sell consumer personal data is the best way for consumers to at least share in some of the financial benefits obtained from the use of their data.

In February of this year, Maryland became the first state to pass a digital advertising tax into law. Known as the Digital Advertising Gross Revenues Tax, Marylands new law imposes a sliding-tax on the annual gross revenues of large companies derived from digital advertising services in the state.2 Digital advertising services is defined under the law as any advertisement services on a digital interface, including advertisements in the form of banner, search engine, interstitial, and other comparable advertising services." 3

New York now joins Maryland, Washington, Oregon, and Connecticut, as states that are currently considering (or have passed, in the case of Maryland) new data or digital advertising tax laws in 2021. Specifically, New Yorks legislature has taken up Bill S1124, titled the Digital Ad Tax Act (DATA), which would: (i) establish a tiered tax (of 2.5% to 10%) on the annual gross revenues derived from digital advertising services in the state for any person with global annual gross revenues of $100 million dollars or more; and, (ii) require each person that has annual gross revenues derived from digital advertising services in the state of at least $1 million to file a sworn return.4 S1124 actually revives an earlier bill version introduced in March 2020, and is modeled after Marylands Digital Advertising Gross Revenues Tax. A key distinction between the New York and Maryland digital ad tax laws, however, is that, under the proposed DATA, the term digital advertising services is expressly limited to those advertisement services that use personal information about the people to whom the ads are directed.

These proposed data and digital advertising tax laws face significant administrative and legal hurdles. For one thing, identifying the situs of a companys digital advertising services and/or sales of personal data for taxation purposes can be virtually impossible. Moreover, as currently being litigated in Chamber of Commerce of the U.S.A. v. Franchot, 5 -- an action challenging Marylands Digital Advertising Gross Revenues Tax, these proposed data taxes may violate various federal laws, including the Internet Tax Freedom Act, the Due Process Clause, Commerce Clause, and dormant Commerce Clause of the U.S. Constitution. New York and the other states have so far sought to address the sourcing and federal law issues through the inclusion of certain registration and self-reporting requirements, and certain exceptions and carve-out language. Time and Franchot will tell if those workarounds are enough.

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Revived Legislative Bill Adds New York to Growing Number of States Seeking to Tax Big Techs Digital Advertising and Sales of Consumer Personal Data -...