Cantwell: Schumer Won’t Take Up House Privacy Bill

Senate Majority Leader Chuck Schumer, D-N.Y., won’t bring up bipartisan privacy legislation the House Commerce Committee introduced for markup this week, Senate Commerce Committee Chair Maria Cantwell, D-Wash., told reporters Wednesday.

Schumer “already said there’s no way they’re bringing that bill up in the Senate,” Cantwell said. Schumer supports a bipartisan, bicameral privacy bill that all four corners agree to, his office said Wednesday. House Commerce Committee Chairman Frank Pallone, D-N.J., ranking member Cathy McMorris Rodgers, R-Wash., House Consumer Protection Subcommittee Chair Jan Schakowsky, D-Ill., and subcommittee ranking member Gus Bilirakis, R-Fla., introduced the American Data Privacy and Protection Act (HR-8152). Markup is Thursday (see 2206140069).

“They can come back to the table on something strong because people who want to get a bill know that you can’t preempt states with a weak federal standard, so hopefully they’ll come back to the table,” Cantwell said: The bill has a lot of “major enforcement holes, just not the right ability for consumers to be protected.” She said the underlying bill has a lot of provisions she negotiated with Senate Commerce Committee ranking member Roger Wicker, R-Miss., but “they took the enforcement out. So you’ve got to have enforcement, and you can’t have weak standards for kids. ... You’re not going to get federal preemption if you don’t have a strong enforcement standard.”

The FTC plans to issue a privacy rulemaking, the agency said in its spring 2022 regulatory agenda, as expected (see 2204180049). The agency tentatively expects to close its comment period for an Advance NPRM in August, according to the filing. The rule would be issued under FTC Act Section 18 to “curb lax security practices, limit privacy abuses, and ensure that algorithmic decision-making does not result in unlawful discrimination.”

Sens. Brian Schatz, D-Hawaii, and Richard Blumenthal, D-Conn., who have been key in Democratic negotiations on privacy legislation in the Senate, have spoken about the need to strengthen the bill’s private right of action. Asked about House discussions, Senate Minority Whip John Thune, R-S.D., told us: “It’s hard to see it going anywhere when they don’t have” Cantwell involved in the conversation.

Sen. Jerry Moran, R-Kan., said he and Blumenthal have continued privacy talks. Blumenthal shared a few outstanding items with Cantwell, said Moran: “Nothing ever happened. I’ll have to study what” House Commerce members have put forth. Rank and file House Republicans and Democrats expressed interest in moving the bill forward in the lower chamber, though they also discussed the need to strengthen some language. “There’s a couple issues I’d like to see changed before I commit to it,” said Rep. Jerry McNerney, D-Calif. “I like the way it looks. It feels good, but there’s some big holes in it.” McNerney is more concerned with data security than the private right of action.

The private right of action needs to be limited and “clearly defined,” said Rep. Brett Guthrie, R-Ky. He voiced concern that a private right of action could be used in a way similar to patent trolls, who file frivolous copyright claims. “I always believe people should have the right to find a lawyer, but I get concerned when you have attorneys seeking clients,” he said.

“It’s about time we do something,” said Rep. Doris Matsui, D-Calif. “The discussions have been going on long enough, and I’m really glad we’re moving forward on this.” Rep. Darren Soto, D-Fla., said he supports the bill, noting it includes some key protections that are explicitly stated, including protections for children’s health and location data. “We need to keep it bipartisan and take advantage of this moment and get it done,” said Soto.

The formally introduced American Data Privacy and Protection Act is a “significant improvement over the original draft,” said Center for Democracy & Technology CEO Alexandra Reeve Givens Wednesday. “While there are many lingering issues that need to be addressed, particularly how to craft a private right of action that will allow for individuals to effectively enforce their rights under the bill, the overall structure and substantive provisions of the bill are moving in the right direction.”

The bipartisan draft discussion language was significant progress, but it’s incomplete, Free State Foundation Senior Fellow Andrew Long wrote Thursday. A private right of action has stood in the way of legislation for good reason, he said: “Such litigation disproportionately would benefit lawyers rather than consumers, deter new entry, and discourage innovation.” Congress should reject a private right of action and preempt state statutes that include that right, he said.

The bill isn’t ready for enactment, said Software & Information Industry Association President Jeff Joseph in a statement. The bill’s treatment of publicly available information is “unconstitutional,” the bill delegates too much authority and discretion to the FTC, it invites litigation abuse, and the preemption section wouldn’t prevent a continued patchwork of state laws, he said.