Aug 4, 2022 - Technology

Online privacy bill faces daunting roadblocks

Illustration of a large gavel surrounded on all sides by orange traffic cones
Illustration: Annelise Capossela/Axios

The federal online privacy bill approved by a key House committee last month — which is farther than any such proposal has previously advanced — is still a long shot to become law.

That's thanks to lobbying by companies over details they don't like, disagreements over whether the law should pre-empt state rules, and tensions between the House and the Senate.

Why it matters: The U.S. has never had a comprehensive national law governing online privacy — and the odds are it's not going to get one this year, despite concerns about companies' appetite for personal data, a growing number of potentially conflicting state laws, and the emergence of strong privacy regulations abroad.

State of play: The bipartisan American Data Privacy and Protection Act (ADPPA) was approved on a 53-2 vote by the House Energy & Commerce Committee in July, setting it up for a possible vote on the House floor.

  • The bill would require companies to minimize the personal data they collect and ban targeted advertising to children under 17 years old.

The intrigue: Several conflicts are dogging the bill's path to becoming law, despite its support from key bipartisan lawmakers.

California led the country with its privacy law, and its home-state lawmakers want to protect it.

  • Democrats from the state say a federal law should establish national minimum standards that states can then build on to increase privacy protections. But Republicans and many businesses aim to set uniform protections nationwide.
  • ADPPA preserves Illinois' biometric privacy law and some provisions of state laws, including California's, but not enough to win support from some California Democrats.
  • The "very obvious impasse" the bill now faces is that Republicans won't support it unless it overrides state laws, Public Knowledge senior policy counsel Sara Collins told Axios.

Sen. Maria Cantwell (D-Wash.), has publicly criticized the bill as being too weak on enforcement. As chairwoman of the Senate Commerce Committee, Cantwell holds the keys to the House bill advancing in the Senate.

  • Cantwell's committee approved children's privacy and online safety bills last month, but she has not said she will move forward on the broader privacy bill.

Major tech companies, their trade groups and interested organizations all say they want a federal privacy law, but they're far apart on what kind of teeth it should have.

  • IBM urged lawmakers to remove a provision that would give consumers the ability to sue companies for violations of the law, known as a private right of action.
  • Companies "want a weak-sauce federal privacy bill" that doesn't allow states to set tougher rules, Electronic Frontier Foundation director of federal affairs India McKinney told Axios.
  • Meanwhile, EFF opposes the bill's provisions overriding state laws and has called on lawmakers to change the bill.

By the numbers: According to a Morning Consult/Politico poll from June, more than 80% of Americans back the major provisions in the bipartisan privacy bill.

What they're saying: House Energy & Commerce Chairman Frank Pallone (D-N.J.), one of the bill's sponsors, "is continuing to build broad bipartisan support and incorporate feedback from members, and is committed to seeing comprehensive national privacy protections signed into law," spokesperson CJ Young told Axios.

  • Sen. Roger Wicker (R-Miss.) another sponsor and ranking member of the Senate Commerce Committee, said in a statement for Axios that Democrats should bring the bill to a vote on the House floor and through his committee.
  • "I hope the Democrats don’t let the American public down by failing to act, as this chance may not come again.”

What's next: The roadblocks are not insurmountable, observers insist, but there's little calendar room for legislating ahead of the midterms.

  • "It gets harder as time gets shorter and politics get more intense," Cameron Kerry, distinguished visiting fellow at the Brookings Institution, told Axios.
  • "We are seeing the Congress capable of legislating — it's happening on climate, it happened on chips. So don't rule it out."

The bottom line: If lawmakers don't vote on the bill before the midterms and possible changes in party control, it's unlikely to become law.

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