House Members Hold Informal Privacy Talks as Senate Advances to Negotiation

Democrat and Republican staffs are in informal discussions about privacy legislation, House Consumer Protection Subcommittee Chair Jan Schakowsky, D-Ill., told us. That signals the committee’s bipartisan legislative discussion isn't as advanced as its Senate counterpart. “We’ve been meeting about it. We fully intend to talk to them in the hopes of getting something bipartisan, but we’re not there yet,” she told us. Schakowsky is the Democratic lead on the committee’s privacy effort.

Sens. Roger Wicker, R-Miss.; Jerry Moran, R-Kan.; Richard Blumenthal, D-Conn.; and Brian Schatz, D-Hawaii, hope to start detailed negotiations soon (see 1903050074). Blumenthal is also involved with a parallel effort from the Senate judiciary Committee that includes Josh Hawley, R-Mo.; Marsha Blackburn, R-Tenn.; and Chris Coons, D-Del.

House leaders assured privacy advocates they “won’t be rushed,” and that they see competition and privacy issues as linked, said Center for Digital Democracy Executive Director Jeff Chester. Wicker and the tech industry should hang “onto their mobile phones because it’s going to be a politically bumpy ride,” he said.

To move forward, Congress needs a bill all stakeholders can “galvanize” around, said NetChoice Vice President Carl Szabo. Democratic lawmakers won’t support a bill that pre-empts and weakens California’s new privacy bill. California shouldn’t be setting the standard for the U.S., Szabo said, urging privacy enthusiasts not to “miss this opportunity” to support bipartisan legislation. Szabo expects California’s law to be challenged and deemed unconstitutional, and if that happens, Democrats’ leverage is “substantially diminished.”

Consumer groups floated a proposal to create a federal data protection agency (see 1902260062). “We are evaluating the various bills based on their alignment with those elements,” said Electronic Privacy Information Center President Marc Rotenberg. A new agency is one of the core principles that should be included in a new bill, said Public Citizen Civil Justice and Consumer Rights Counsel Remington Gregg. He cited FTC failure to protect consumer data.

If Wicker, Moran, Blumenthal and Schatz are able to get behind one proposal, that gives momentum, Szabo said: And California's delegation needs to recognize its duty as federal legislators. Szabo supports a privacy bill from Sen. Marco Rubio, R-Fla. That bill (see 1901160047) would require the FTC give privacy regulation recommendations to Congress. Rubio recognized this is a complex issue that needs to be approached with all stakeholders, as opposed to California's, which was rushed through in 72 hours, Szabo said.

Rubio’s bill is one of many in the Senate. Amy Klobuchar, D-Minn., and John Kennedy, R-La., last year introduced a bill (see 1804240046) that would allow users to opt out of online platform data collection and tracking and would require 72-hour breach notification. Kennedy is preparing to introduce a separate privacy proposal soon, he told us: “It’s a damn fine bill.”

Blumenthal previously introduced legislation with Sen. Ed Markey, D-Mass., a privacy bill of rights that directs the FTC to set protections for consumers of online edge providers (see 1805140066). Schatz introduced a proposed law (see 1812120036) to require “reasonable efforts” to secure data and notify users of breaches, prohibit companies using data to “harm” users and set confidentiality guidelines for third-party sharing of data. Schatz also introduced a biometric privacy bill with Sen. Roy Blunt, R-Mo.

Another bill, from Sen. Ron Wyden, D-Ore., would allow the FTC to issue “steep fines” for first-time offenders and levy 10-to-20-year criminal penalties for senior executives. Sen. Catherine Cortez Masto, D-Nev., introduced a bill (see 1902280085) to make companies get opt-in consent for collecting and disseminating precise location data. Sen. Mark Warner, D-Va., is working through privacy proposals based on his white paper (see 1903080034).

It’s too soon to tell which bill will emerge, said Providence Group Executive Chairman Dan Caprio: “Congress is trying to determine the problem they are trying to solve. We will have a better handle on what will gain traction once a consensus begins to emerge.”