Senate Commerce Chairman 'Open' to Talks on Narrow Private Right of Action

Senate Commerce Committee Chairman Roger Wicker, R-Miss. is “open to discussing” a narrowly tailored private right of action provision in a compromise data privacy bill. He told reporters Monday any discussion of such a provision would be part of broader negotiations “in good faith" to try to win Democrats' support. The committee plans a hearing 10 a.m. Wednesday (see 1911250058).

Wicker acknowledged he hasn't met his goal of releasing a joint discussion draft with Senate Commerce ranking member Maria Cantwell, D-Wash., that would highlight areas of existing agreement and disagreement. “That is what we had agreed to,” and “I hope we're back at that point” soon, Wicker said. “My goal is for that to have already happened, and it hasn't already happened.”

There’s "a construct here to talk about," Cantwell told reporters Tuesday in response to questions about whether a private right of action and federal pre-emption are issue gaps she and Wicker can bridge. "We’ll see. I think people want to know that these issues consumers are frustrated with are going to be dealt with.”

Senate Majority Whip John Thune, R-S.D., told reporters his openness to a limited private right of action “would depend entirely on how it was drafted. But that is one of the big sticking points in an agreement, and if we can figure out a way to bridge that, then we might be able to get a deal.”

“We always thought that enforcement would be the big issue that we had to talk about, and frankly we need strong enforcement. So I’m sure we’ll spend a lot of time discussing it,” Cantwell said Tuesday. “We’re definitely going to have a lot to say tomorrow, and yeah, we’re still working.”

Differences from Wicker’s draft include that Cantwell’s bill has a private right of action provision and doesn’t pre-empt state privacy laws. Wicker's draft would give the FTC jurisdiction over common carriers and nonprofits, a provision absent from Cantwell’s proposal that tech industry groups sought. Cantwell would take effect 180 days after enactment, while Wicker gives two years.

Both bills include similar consumer rights to access, delete, correct and port data. They include similar definitions about covered data, contain small business exemptions and opt-in consent requirements for sensitive data, like biometric information. Some stakeholders pointed out such similarities.

Sen. Richard Blumenthal, D-Conn., is continuing bipartisan talks with Sen. Jerry Moran, R-Kan., separately from Wicker and Cantwell. Cantwell delivered a “good bill,” with a lot of provisions that Blumenthal said he supports. Asked why he didn’t co-sponsor the legislation, Blumenthal told reporters he’s continuing to negotiate with Moran. Asked if a bipartisan privacy plan will require Cantwell’s support to advance through committee, Blumenthal hopes both of the committee’s party leaders will support the proposal if Blumenthal and Moran deliver. “First we have to reach some consensus,” Blumenthal said. “I think it will be aimed at achieving as broad support as possible.”

Including a private right of action has always been “one of my goals" because consumers deserve redress if privacy is harmed, Blumenthal said. Federal pre-emption is another difficult issue he and Moran are trying to work out. “Nothing will happen on any of these bills unless there’s bipartisan agreement,” Blumenthal said. “That’s a sort of obvious fact about any bill these days, certainly any major bill like privacy.”

Sen. Brian Schatz, D-Hawaii, and 15 Democratic senators reintroduced privacy legislation Tuesday that would set parameters for companies collecting data online (see 1812120036). Schatz wouldn't discuss specifics.

Asked whether he could support a bipartisan bill that Cantwell isn’t backing, Senate Banking Committee ranking member Sherrod Brown, D-Ohio, told us, “I don’t say no to other bills that are bipartisan or others put forward.” The Democratic principles and Cantwell’s legislation are a “good start,” he said.

Senate Banking Committee Chairman Mike Crapo, R-Idaho, told us he’s had general conversations with Wicker about cross-jurisdictional attention on privacy. All three committees -- Commerce, Banking and Judiciary -- want involvement, he said. “Coming together across jurisdictions needs to be done. Conversations about that certainly have been held.”

Senate Intelligence Committee ranking member Mark Warner, D-Va., wants to leave it up to Senate Commerce members to decide whether a private right of action must be included. “The social media platform companies’ theory of kind of playing rope-a-dope with Congress for a number of years, in terms of regulation, is simply continuing to raise the bar ethically,” he told reporters. “We all realize that any ultimate standard is going to have to be pretty high to meet all the challenges we’ve got out there.”

Future of Privacy Forum noted the bills are “closer together on most issues than they are apart.”

Free State Foundation Adjunct Senior Fellow Andrew Long urged Congress to pass a federal privacy law that pre-empts state laws. If it doesn’t, California will fill the void, said Long.

AT&T thinks online platforms deserve as much regulatory scrutiny as ISPs have had for decades, said Senior Executive Vice President-External & Legislative Affairs Jim Cicconi. That's a theme cable and telecom stakeholders have been raising.