The Senate’s Talking Privacy Laws Again…But Is Anything Different?

If you want to take the privacy pulse of the nation, there are few better venues than a Senate Commerce Committee hearing in which to do so. Yesterday, the Committee that will be the source of a federal US privacy law – if there ever is one! – convened a hearing called “Revisiting the Need for Federal Data Privacy Legislation.” It’s fair to say they had an all-star cast of privacy experts as witnesses:

• Julie Brill, Former Commissioner, Federal Trade Commission
• William Kovacic, Former Chairman and Commissioner, Federal Trade Commission
• Jon Leibowitz, Former Chairman and Commissioner, Federal Trade Commission
• Maureen Ohlhausen, Former Commissioner and Acting Chairman, Federal Trade Commission
• Mr. Xavier Becerra, Attorney General, State of California

Pretty impressive! That’s four FTC Commissioners and the point person for the US’s most groundbreaking privacy legislation, the CCPA. So what, with all this firepower gathered in a room, can we learn about the state of privacy in the US -particularly as it relates to a federal law?

1. Ceiling vs floor, or pre-emption of state laws, will be the biggest point of disagreement for federal privacy policymakers

Between the witnesses and the Senate Committee, a wide range of opinion on pre-emption was evident. AG Becerra and Ranking Member Senator Cantwell put up forceful arguments that a federal privacy law must not be allowed to place a ceiling on privacy protections afforded by a given state.

The clear issue here, as noted by Committee Chairman Wicker, is that positioning federal privacy law as a “floor” negates the efficiencies that can come with nationwide harmonization of privacy regulation. This question is essentially a zero-sum game; there’s no easy way to meet in the middle. But until one side bends on this, chances of passing bipartisan legislation are remote.

2. A private right of action seems unlikely at a federal level

Right out of the gate, CA-AG Becerra was adamant that letting privacy victims have their day in court is an essential enforcement tool for any federal privacy law. Throughout the hearing he repeated the line that:

A right without a remedy is no right at all.

But his sentiments didn’t seem to be echoed by other key figures in the hearing. It’s notable that the most recent privacy bill introduced by Committee Chair Wicker, the SAFE DATA act, lacks any private right to action, and it seems as though Republican legislators are adamantly opposed to including one.

3. There’s strong belief that the lack of a federal privacy law means the US risks losing its “voice at the table”

Here was an area where there was unanimous agreement. Those in the privacy space and lawmakers tasked with studying it understand the poor optics of no nationwide privacy consensus.

That doesn’t just mean a bad political look, it means that the US and US businesses risk being subject to activist regulators from other parts of the world rather than helping to define the privacy conversation.

Said former FTC Chair Kovacic:

It causes us to be dismissed…if we do not adopt a national privacy law of our own that reflects the deliberations of this committee, we will get a national privacy law; it will be called the GDPR.

4. The privacy conversation in United States is increasingly sophisticated

Despite the sticking points mentioned above, there’s no doubt that understanding and sophistication of privacy discourse at the federal level is increasing. Almost every member of the Commerce Committee has put their name to a proposed privacy bill over the course of the last year, and Committee Chair Wicker’s latest, the SAFE DATA Act, goes into granular detail on complicated topics like algorithmic bias and filter bubble transparency.

This high level of expertise was also reflected in the sharpness of all 5 witnesses. Chairman Wicker acknowledged their contributions at the end of the hearing, saying: “I’ve participated in many hearings in this Committee and I don’t think I’ve ever heard a more knowledgeable or articulate panel.”

Conclusion

The question that remains is whether this accumulation of expertise can actually move the needle on getting a bill passed into law. My observation – purely personal, is that the “ceiling vs floor” argument is pretty intractable, and it splits along partisan lines. It remains difficult for me to see a path towards meaningful federal privacy protection without a significant partisan shift on this issue.