Cruz Sees 'No Chance' for Privacy Bill; Cantwell Ready to Move

Privacy legislation proposed by Senate Commerce Committee Chair Maria Cantwell, D-Wash., has "no chance of passing," ranking member Ted Cruz, R-Texas, told us last week. Cantwell said she supports the bill as written and is encouraged to see the House Commerce Committee moving toward a markup on the American Privacy Rights Act (APRA).

The bill's private right of action, which allows consumers to sue companies that violate the act, sets a stronger standard than any state privacy law, said Cantwell. When she introduced her draft discussion with House Commerce Committee Chair Cathy McMorris Rodgers, R-Wash., Cruz quickly called out the inclusion of a private right of action (see 2404080062).

Congress can pass a privacy law, but the exact language is "an open question," said Cruz. The draft discussion raises "very significant concerns," he said: As written, it "has no chance of passing."

The House Commerce Committee's previous bipartisan privacy bill, the American Data Privacy Protection Act, included a private right of action and sailed through the committee 53-2 in 2022 (see 2207210001). The committee will consider the APRA and two kids' online safety bills during a markup Wednesday (see 2404100059).

There's "no reason" for Congress to wait on movement for the Kids Online Safety Act to advance the APRA, said Sen. Richard Blumenthal, D-Conn., who introduced KOSA with Sen. Marsha Blackburn, R-Tenn. "I've tried to climb this mountain, and I know how difficult it is, but [Cantwell has] gotten farther than a lot of other bipartisan efforts," he said. "I commend her for a strong, bipartisan effort."

The bill is a "good" compromise and shows "what it takes" to get agreement on a federal bill, Cantwell told us.

It's great to see that she and Rodgers are making privacy a "priority," said Rep. Kathy Castor, D-Fla., who helped lead House efforts on introduction of KOSA and COPPA 2.0. She said it's unclear whether the kids' privacy provisions can be included in the comprehensive bill, but APRA looks similar to the ADPPA, so the outlook is "positive."

Bills for comprehensive privacy, kids' privacy and national security issues related to TikTok all have "distinct" goals, said Blumenthal, and each one should be considered on its own merits.

Origins of Cantwell's draft discussion can be traced back to Facebook's Cambridge Analytica scandal (see 1912060030), which saw members of both the Commerce Committee and the Judiciary Committee positioning themselves in the debate, said Sen. Thom Tillis, R-N.C. He said the proposal is starting with the "right committee," but hopefully the Senate can overcome any jurisdictional barriers to final passage.

Sen. Brian Schatz, D-Hawaii, credited Cantwell and Rodgers for including a duty of care provision in the bill, which would establish liability for companies that don't take reasonable steps to protect users' data. Schatz said the provision isn't the one he drafted for his own bill (see 2303100037), but it's "reasonably strong, and I'm feeling encouraged."

The draft introduction has "everyone talking privacy again," said Sen. Jerry Moran, R-Kan., a member of the Commerce Committee's original privacy working group, which included Schatz, Blumenthal and former ranking member Roger Wicker, R-Miss. Moran said there will need to be "extensive" hearings to reach consensus on the legislation.

Cantwell's support for the bill "matters for clear reasons," so "I'm hopeful there will be action in the near future," said Sen. Ben Ray Lujan, D-N.M.