Democrat DelBene to Reintroduce House Privacy Legislation in Q1, Says Aide

Rep. Suzan DelBene, D-Wash., will reintroduce her privacy legislation (see 1912060035) sometime this quarter, an aide told us Friday. Observers said in interviews that this is the best chance Congress has had in recent years to pass a comprehensive privacy bill, in light of President Joe Biden’s election and a Democratic House and Senate.

DelBene will refile the Information Transparency and Personal Data Control Act (HR-2013), a preemptive national law that would give the FTC targeted rulemaking authority and the ability to fine on first offenses. Companies would need to gain opt-in consent before using consumers’ private information in certain circumstances and disclose certain data-sharing practices. DelBene’s office is discussing how to get bipartisan support for the bill, the aide said: A national standard is needed to help set the global stage, given EU’s general data protection regulation.

DelBene’s bill has bipartisan appeal because federal preemption without a private right of action should attract some Republicans, said National Retail Federation Senior Policy Counsel Paul Martino. Having a national privacy law puts the U.S. in a better position with the EU, which doesn’t consider U.S. privacy laws adequate, based on the Schrems II decision, he added (see 2010270059).

“More pressing issues” are before Congress, but a Democratic-controlled House and split Senate “probably increases the chances of a federal privacy law over the next couple of years,” said Locke Lord’s Ted Augustinos. “This won’t be a first hundred days kind of thing. But I would expect it fairly high on the radar.”

“If the Democrats want a bill that is theirs, they’ve got to do it in the next two years, if history teaches us anything,” said Association of National Advertisers Group Executive Vice President-Government Relations Dan Jaffe, noting the party in power often loses seats the following election. The privacy fight will be over federal preemption and a private right of action, he added. He contended that Vice President Kamala Harris’ influence, and her connection to California, will strengthen privacy as a White House agenda item.

“Everything is in alignment in a way that it wasn’t last Congress,” said ex-FTC Chairman Jon Leibowitz, now at Davis Polk. He expects renewed pressure from the new administration, consumer groups and business organizations.

Privacy legislation will move “more likely in the second quarter than the first,” said Martino. He agreed federal preemption and private right of action will be the key issues. It’s unclear if the Senate will have 60 votes for federal preemption, he noted. Vendor liability hasn’t been resolved, he said, citing a trend in which state laws exempt third parties and service providers from data protection obligations. “The solution is that Congress promotes legislation where everyone who touches data has some responsibility” and is liable for privacy violations, he said.

The business community will push hard to replace a patchwork of developing state privacy laws, said Augustinos, and consumer advocates are equally motivated. A change in control of the White House and the Senate creates a delay due to re-staffing and internal reprogramming, said Jaffe. The pandemic and a looming impeachment trial will also draw attention away from privacy efforts, he added.