Senate Commerce Members: No Formal Privacy Talks for Now

No formal privacy talks are ongoing, Senate Commerce Committee members told us. Wednesday’s hearing with former FTC officials, in which legislators discussed specific proposals, was a good step forward, they said.

Informal discussions continue, ranking member Maria Cantwell, D-Wash., and Sen. Jerry Moran, R-Kan., told us. Cantwell noted “a lot of dialogue in the last several weeks” about specific privacy items. Moran described “ad hoc conversations during votes, following votes, on the way to votes, in committee meetings.” He followed up with Sen. Richard Blumenthal, D-Conn., Wednesday, he said: “To my knowledge, there are no formal talks.”

Sen. Brian Schatz, D-Hawaii, floated the need to include a duty of loyalty in any federal privacy legislation. Chairman Roger Wicker, R-Miss., told us that concept is “hard to put in black and white." He “struggled” with being able to put that in writing in a meaningful way without “bogging down the process.”

Former Commissioner Julie Brill (D) spoke favorably of both Wicker’s Safe Data Act (see 2009180052) and Cantwell’s Consumer Online Privacy Act (see 1911260055), while each lawmaker pushed for support of their bills. Brill is Microsoft's chief privacy officer. Like Wicker, former Chairman Jon Leibowitz (D), now at Davis Polk, wants a federal, preemptive law that’s stronger than the California Consumer Privacy Act or EU’s general data protection regulation.

California Attorney General Xavier Becerra (D) highlighted the importance of state privacy laws, calling them the backbone and federal law the glue. Consumers should have a private right of action, he said, which has been a sticking point for Republicans. Former acting FTC Chair Maureen Ohlhausen (R), now at Baker Botts, spoke of the need to avoid a patchwork of state laws to provide industry and consumers clarity.

Wicker asked about reports that companies are struggling with a lack of harmonization in the EU, despite GDPR. The EU is “working hard” to provide harmonization, Brill said, noting the importance for interoperability, particularly for smaller companies trying to comply with privacy law.

Cantwell asked why a private right of action is needed. State AGs are sometimes too consumed to address all privacy issues and claims, Becerra said, so consumers should have the right to pursue their own remedies independently.

Sen. Amy Klobuchar, Minn., said if Democrats take back the majority, and she becomes chair of the Senate Antitrust Subcommittee, getting the FTC more resources for consumer protection and antitrust issues will be a priority. Leibowitz supported that, saying the agency was given consistent increases during the Bush and Obama administrations.

Moran cited the importance of accounting for persistent identifiers for consumers in privacy legislation, which is included in his privacy bill (see 2003120047). Leibowitz agreed it’s “critically important” because persistent identifiers are a way companies can track consumers, who deserve a right to opt out of collection of their personal identifiable information.

Senate Majority Whip John Thune, R-S.D., noted a trend of social media platforms using “filter bubbles” to maximize user engagement. He asked if there should be more transparency for how companies filter content. All witnesses agreed.

The next Supreme Court justice should be committed to privacy and upholding individual rights, Blumenthal said. Witnesses agreed. It’s important because the U.S. is starting to lose what's the definition of privacy, Becerra said. If the U.S. doesn’t pass a federal privacy law, it risks losing its competitiveness and thought leadership on data privacy rights, Brill said.