Dec 3, 2019

Senators' year-end push on privacy

After months of talks on bipartisan legislation, Senate Commerce Committee leaders have unveiled dueling privacy bills ahead of a hearing this week. But insiders believe the process might still yield a compromise both parties can embrace.

What they're saying: "Now there’s actually opportunity for serious negotiations between the different positions," said Jules Polonetsky, CEO of the Future of Privacy Forum, which did a comparison of the two bills. "These bills have more in common than they have dividing them."

The Republican version: Sen. Roger Wicker (R-Miss.) circulated his discussion draft, the United States Consumer Data Privacy Act, last week.

  • It would provide consumers with the ability to access, correct, delete and port data companies have about them, and it would provide limited rule-making authority to the Federal Trade Commission, according to a copy obtained by Axios.
  • But it would also preempt state privacy regulations and would not provide individual citizens with a private right of action to sue companies, two sticking points for Democrats.

The Democratic version: Sen. Maria Cantwell's (D-Wash.) Consumer Online Privacy Rights Act, also announced last week, gives the FTC greater enforcement authority and would allow consumers to enforce the law by bringing civil lawsuits.

  • "Both bills take the idea that privacy needs to be protected seriously," said Free Press senior policy counsel Gaurav Laroia.

Meanwhile, Privacy for America, a coalition of advertising industry trade groups, has a "new paradigm" for privacy out Tuesday that it sees as a third way forward on the issue.

  • Rather than focusing on obtaining consumers' consent to share data over and over, the framework calls for banning data practices that could lead to misuse, such as using data to make housing or credit eligibility decisions.
  • The idea came after a consumer survey showed that people have "notice fatigue" on privacy policies, said Stu Ingis, an adviser to the group and chairman of Venable. "The goal is to have strong protections and strong enforcement for consumers, and we think our approach does that in ways that have not previously been offered."

Yes, but: The framework would preempt California's landmark privacy law and would not allow for a private right of action.

  • "I think both of those issues become less important if you have strong protections," Ingis said.

What's next: The Wednesday hearing will likely show whether Commerce committee members are still trying to reach a compromise.

  • The House Energy & Commerce committee has been quietly working on bipartisan privacy legislation as well.

Go deeper: The future of privacy starts in California

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