Senate Commerce Working Group Delays Negotiating Most Contentious Privacy Bill Issues

The Senate Commerce Committee’s privacy working group is leaving the most contentious legislative issues for latter stages of negotiation (see 1905010198), Senate Majority Whip John Thune, R-S.D., told us Tuesday. Senate Banking Committee Chairman Mike Crapo, R-Idaho, who insists committee collaboration is necessary to resolve sectoral issues, told us he isn’t ruling out moving forward with his own privacy bill.

The group is “waiting on some of the more contentious issues probably until the end, trying to negotiate the things everybody agrees upon upfront,” Thune said. He noted there's some legislative language circulating among the group, which first met with all six members present last week. The group held a staff-level meeting Wednesday, Chairman Roger Wicker, R-Miss., told us Thursday.

Thune said his staff has been involved in crafting legislative text: “I’m not sure exactly how much of it we’ve seen, but I know they’re starting to put it into legislative language.” Commerce ranking member Maria Cantwell, D-Wash., stopped short of calling it bill “language,” saying the group briefed the two new members last week on progress so far.

“We’ve agreed to some very specific principles, and some are still out there,” Wicker said. “When it’s all said and done, we will have something that six people have formed a consensus around, or we’ll have nothing.” Specific bill language will come at the very end, Wicker said, noting some of the provisions are more than just concepts.

The Banking Committee isn’t waiting on Commerce to proceed with its own privacy effort, Crapo said, noting his members are still collecting information. “We are not drafting legislation yet, but there are multiple jurisdictions in Congress over this issue, and we are going to have to coordinate on it,” he said. “We do need legislation, but in terms of how that will be crafted, that’s not determined completely.”

The group is making good progress, Sen. Brian Schatz, D-Hawaii, told reporters. He played down any need to rush the bill. "I don't think we need to see a bill soon in order to continue to make progress." Suggestions the group might release something "next week" are "highly, highly optimistic," he said.

Senate Judiciary Committee members also are looking to insert themselves into the privacy debate. Senate Constitution Subcommittee Chairman Ted Cruz, R-Texas, reiterated his call for Google to testify before his panel (see 1904100072). He previously rejected a company witness because Google didn’t provide an executive comparable to representatives sent by Facebook and Twitter. Cruz said the follow-up hearing would focus on tech censorship and bias, like the first. “We’re moving forward with an additional hearing focused on Google,” he told us. “I don’t know that a specific date has been nailed down yet. I know it’s in process.” Google didn’t comment.

One of the Commerce privacy group’s most contentious issues is federal pre-emption of state privacy laws. Democrats insist they’ll only support a bill as strong or stronger than the California Consumer Privacy Act, and Republicans are demanding pre-emption. The group shouldn’t start with the question of pre-emption, Cantwell said: “We have millions of Americans impacted with privacy, and we want to make sure we’re getting that right first, and then we can talk about whether we” should pre-empt.

The group needs to ensure “we have a federal privacy law that applies to every American and is sufficiently tough and robust that it justifies pre-empting legislatures,” Schatz said. The key is to first “do no harm,” said Sen. Richard Blumenthal, D-Conn. He cited a “need for strong standards and respect for state standards without undue federal pre-emption.”