In an era where data has become a strategic asset, the United States has implemented robust legal frameworks to safeguard sensitive personal information from foreign adversaries. The Protecting Americans’ Data from Foreign Adversaries Act of 2024 (PADFA) and the Department of Justice’s (DOJ) Data Security Program (DSP), established under Executive Order 14117, represent parallel yet distinct approaches to mitigating national security risks associated with cross-border data transfers. While both aim to prevent the misuse of U.S. individuals’ sensitive data by adversarial nations, they differ significantly in scope, applicability, regulatory philosophy, and enforcement mechanisms. As we’ve heard from many privacy attorneys and consultants that they would like to see a comprehensive comparative analysis, drawing on official legislative texts, regulatory guidance, and recent developments as of August 2025, there has been some confusions between the DSP and PADFA so we’re here to help assist scholars, practitioners, and policymakers in navigating this political privacy obstacle course.
Historical and Legislative Background
The proliferation of data brokers and the increasing sophistication of foreign intelligence operations have prompted heightened U.S. regulatory scrutiny. These frameworks emerge from a broader geopolitical context, where data exploitation by adversaries poses threats to national security, economic stability, and individual privacy.
Executive Order 14117 and the Establishment of the DSP
Issued on February 28, 2024, Executive Order 14117 directed the DOJ to develop regulations preventing access to Americans’ bulk sensitive personal data by countries of concern. The DSP, finalized in a rule published on January 8, 2025, and effective April 8, 2025, implements this directive through a risk-based framework. It encompasses a wide array of transactions, including vendor agreements, employment relationships, and investments, with provisions for mitigation via security requirements. The DOJ has issued extensive FAQs and compliance guidance to facilitate implementation, emphasizing good-faith efforts during an initial 90-day grace period ending July 8, 2025.
Enactment and Evolution of PADFA
Enacted as part of Public Law 118-50 on April 24, 2024, and effective June 23, 2024, PADFA specifically targets data brokers, prohibiting outright the transfer of personally identifiable sensitive data to foreign adversaries or controlled entities. Administered by the Federal Trade Commission (FTC), it operates without volume thresholds or mitigation options, reflecting a zero-tolerance stance. As of this writing, the FTC has yet to initiate enforcement actions but has signaled priorities in public statements. If and when any enforcement does happen it will be front page headline news with serious consequences.
Scope and Applicability of PADFA
PADFA’s narrow focus on data brokers distinguishes it from broader regulatory schemes, emphasizing absolute prohibitions to curb commercial data flows to adversaries. Data brokers have been under fire already and enforcement is on the rise. The recent passing of Daniels Law in New Jersey has also heightened awareness about the industry.
Definition of Data Broker and Exclusions
A data broker under PADFA is defined as an entity that, for valuable consideration, makes available data of U.S. individuals not collected directly from them, to non-service providers. Exclusions include service providers, media entities, and certain non-commercial transfers. Entities aggregating or distributing third-party data must assess their status carefully.
Core Prohibitions and Foreign Adversaries
The Act prohibits selling, licensing, or providing access to personally identifiable sensitive data to China, Iran, North Korea, Russia, or controlled entities, irrespective of data volume. “Making available” includes remote access via APIs or dashboards, with control assessed at a 20% ownership threshold.
Scope and Applicability of the DSP
In contrast, the DSP adopts a comprehensive approach, regulating diverse U.S. persons and transactions with thresholds and safeguards. We have developed privacy centric tools to help with compliance. We have a DOJ DSP Compliance Software offering developed by the engineers here at Captain Compliance.
Covered U.S. Persons and Transaction Types
Applicable to any U.S. person engaging in data brokerage, vendor, employment, or investment transactions involving bulk sensitive data. It covers first- and third-party data, extending to Cuba and Venezuela beyond PADFA’s four countries.
Regulatory Structure and Mitigation Measures
The DSP prohibits transactions unless meeting security standards aligned with CISA guidelines, due diligence, and contractual controls. Bulk thresholds vary by data category, with no volume limit for government-related data.
Comparative Analysis of Sensitive Data Definitions
While overlapping, the definitions of sensitive data differ in granularity and scope, necessitating a detailed crosswalk for compliance.
| Category | PADFAA Definition | DSP Definition |
|---|---|---|
| Government-Issued Identifiers | Full or truncated government ID or account numbers; demographic/contact data (name, birth date, address, etc.). | Covered personal identifiers as defined in 28 CFR 202.241. |
| Health Data | Information on physical/mental health, disability, diagnosis, or treatment. | Personal health data per 28 CFR 202.241. |
| Financial Data | Account numbers, income levels, bank balances. | Full account/PIN; personal financial data per 28 CFR 202.240. |
| Biometric Information | Biometric data. | Biometric identifiers (facial images, voice prints, etc.) per 28 CFR 202.204. |
| Genetic Information | Genetic data. | Human ‘omic data per 28 CFR 202.224. |
| Precise Geolocation | Precise location info. | Precise geolocation data per 28 CFR 202.242. |
| Private Communications | Private communications, log-in credentials, sexual behavior, calendar/address book, private media. | Excludes personal communications; account-authentication data. |
| Other Categories | Minor data, race/ethnicity/religion, online activities, Armed Forces status, naked images, video content. | Government-related data (any volume); marketed as linked to U.S. officials. |
Key Differences in Prohibitions and Compliance Mechanisms
The regimes diverge fundamentally: PADFA’s absolutist ban versus DSP’s conditional allowances.
Absolute Prohibitions under PADFA
No exceptions or mitigations; even single records are prohibited, with broad interpretations of “access.”
Risk-Based Approach in DSP
Permits transactions with safeguards; focuses on bulk data and government-linked information.
Enforcement Mechanisms and Penalties
Enforcement reflects the frameworks’ structures, with PADFA treated as unfair practices and DSP offering civil/criminal remedies.
FTC Enforcement for PADFA
Violations under FTC Act Section 5; civil penalties per offense, no safe harbors.
DOJ Enforcement for DSP
Civil fines up to $250,000 per violation, criminal penalties; considers good-faith compliance.
Recent Developments and Enforcement Priorities
As of August 2025, the FTC and DOJ have emphasized collaboration. In her April 2025 keynote at the IAPP Global Privacy Summit, FTC Commissioner Melissa Holyoak highlighted PADFA as a priority, noting potential partnerships with DOJ on DSP enforcement. DOJ’s FAQs clarify overlaps, advising entities to comply with the stricter regime where applicable.
Practical Strategies for Compliance and Risk Management
Organizations should conduct data mapping, enhance vendor screening, and integrate governance practices. Adapting existing privacy programs can mitigate risks, with emphasis on documentation and training. Using software from Captain Compliance and working with us you can lower your risk of violating federal laws. PADFA and DSP exemplify the U.S.’s multifaceted strategy against data threats, balancing absolute protections with flexible risk management. As geopolitical tensions evolve, ongoing compliance and adaptation will be paramount for entities handling sensitive data.
