Game on: What to make of Senate privacy bills and hearing

Although separate Republican and Democratic bills are not the joint bipartisan proposal widely anticipated for several months, the bills and the hearing this week kick off the concrete discussion about privacy legislation that stakeholders have wanted for several months. The first bill to emerge was the Consumer Online Privacy Rights Act filed by Sen Maria Cantwell (D-WA) on Nov 26. Then, just before Thanksgiving, Senate Commerce Committee Chairman Roger Wicker (R-MS) circulated a “staff discussion draft” of a Consumer Data Privacy Act of 2019 covering much of the same ground, but with a different drafting approach and some distinct points of difference. Although there are key differences, the two bills also have important similarities.  Both adopt the same general framework: a set of individual rights combined with boundaries on how businesses collect, use, and share information, all of which would be enforced through the Federal Trade Commission. 

The biggest area of divergence between the two bills is the "endgame issues" of preemption and private rights of action. The Wicker bill contains a sweeping provision to preempt any state law “related to the data privacy or security and associated covered entities.” The Cantwell bill is somewhat nearer the middle; it includes preemption of “directly conflicting state laws,” but with a proviso that this does not override laws with “a greater level of protection.” It ensures state consumer protection, tort, contract, civil rights, and other laws are not affected, leaving wide exposure to state laws. The gap is at least as wide when it comes to private rights of action. The Wicker bill has none, the Cantwell bill allows individual suits for damages and injunctive relief.

Between now and the end of the current legislative session, Congress faces what Politico Playbook calls a worse “legislative nightmare” than ever and the Senate is likely to spend the early part of the next session in an impeachment trial. But outside the hot glare of these confrontations, Senate Commerce Committee members, staffers, and stakeholders can continue the work of shaping privacy legislation that can command broad support. You don’t have to be a ridiculous optimist to expect that behind-the-scenes work to will continue, and to hope that it can yield a bipartisan proposal capable of passage in 2020.