Published on March 12th, 2020 📆 | 5055 Views ⚑
0Bipartisan Privacy Talks Split With Second Senate GOP Bill (1)
Months-long bipartisan negotiations over a federal privacy bill have hit a rough patch in the Senate, with Sen. Jerry Moran (R-Kan.) releasing his own measure after disagreements with Sen. Richard Blumenthal (D-Conn.) over whether to allow individuals to sue over privacy violations.
Legislation unveiled by Moran on Thursday would create a national privacy standard that preempts most state laws, according to text obtained by Bloomberg Government. Missing from the measure is a private right of actionâa provision to allow consumers to sue companies over privacy violations that has become a key sticking point in negotiations.
Individual lawsuits and preemption remain the two areas where Republicans and Democrats are at odds. Democrats, including Blumenthal and Sen. Maria Cantwell (D-Wash.), the Senate Commerce, Science, and Transportation Committeeâs ranking member, are pushing for private lawsuits and opposing broad preemption in a federal bill.
Moranâs measure comes a week after Senate Commerce Chairman Roger Wicker (R-Miss.) said the panel had hit a âlog jamâ over a private right of action. The Senateâs second-ranking Republican, John Thune (S.D.), also said last week he didnât see any path forward on talks at this point.
âI think itâs important for me to introduce a bill because I think that the thought process weâve gone through, the input weâve had from consumers and FTC and industry, I think we have a product that is of great value in this debate of what data privacy should look like,â Moran said in an interview Wednesday.
Wicker on Thursday echoed earlier comments that talks were currently at an impasse. âUntil we can get the Democrats from considering the private right of action as a Holy Grail, weâre not going to get anywhere,â he said.
âItâs disappointing that we seem to be stuck on that, but itâs something we knew about from the outset and until thereâs some movement there, thereâs no way it could pass the Senate,â Wicker told reporters.
Moran said he was open to a more narrow private right of action, such as injunctive relief, which is a court order directing a defendant to stop a specified act or behavior. Wicker said late last year that heâd be open to injunctive relief. But Moran and Blumenthal couldnât come to agreement, Moran said.
Moran said he was also âdisappointedâ that he and Blumenthal couldnât agree on a bipartisan bill. If they had âput together a product that would bring other Republicans and Democrats to the table, we would have accomplished something of greater significance,â he said.
Talks Continue
There is still room for negotiations. Moran and Blumenthal indicated they plan to continue to work through the disputed privacy provisions in the future.
âWe always knew these issues would be tough to solve,â Blumenthal said in an email. âI appreciate Senator Moranâs collaboration and look forward to continuing the conversation with him and our colleagues.â
âThere are number of areas where we simply have been unable to reach agreement so far, but we may have some bill at some point,â he told reporters on Thursday.
Moranâs bill is now the second Republican measure in the Senate, after Wicker put forward a privacy draft bill last December that similarly wouldnât allow for individual lawsuits. Cantwell introduced a Democratic bill (S. 2968) in November that would allow consumers to seek civil action in a state or federal court over privacy violations.
The tech industry anxiously awaits a federal bill as more state pass piecemeal privacy measures that will drive up business compliance costs, Carl Szabo, vice president and general council of tech trade group NetChoice, said in an interview.
âStarting with a non-starter just doesnât make sense. And stuff like a private right of action or no preemption are just non-starters,â he said. âIt almost makes me think that there is not a legitimate interest in creating a privacy bill, but creating the appearance of interest.â
Szabo said heâs âcautiously optimisticâ a bill can get done. âAs more business feel the pain, theyâre going to turn to Congress to address the situation.â
Privacy Protections, Stronger FTC Enforcement
Moranâs bill is otherwise similar to Wicker and Cantwellâs measures in areas including allowing consumers to access, port, correct, and erase their personal data.
Moranâs bill goes further than the other proposals in authorizing the Federal Trade Commission to hire 440 new employees to increase the agencyâs privacy enforcement. Moran, a senior Senate appropriator, said he wants to boost FTC funding.
âIf weâre going to have a national standard and enforcement is going to be at the national level or through state attorneys general, for this to be a success, for data privacy to occur, the FTC needs the resources, people and money,â he said.
Moranâs bill differs from Wickerâs measure in that it doesnât include language that would require data brokers to register with the FTC. Moranâs bill also lacks language around algorithmic decision-making thatâs present in both Wicker and Cantwellâs proposals.
Under Wickerâs draft bill, the list of data brokers would be published online by the FTC. Failing to register under Wickerâs bill could lead to fines capped at $10,000 each year.
BSA|The Software Alliance, which represents companies like IBM and Salesforce, said they were glad Moranâs bill distinguishes between businesses that control data and those that process data on behalf of others. âThis distinction is key to safeguarding consumer privacy without creating new security risks,â Craig Albright, BSAâs vice president of legislative strategy, said in a statement.
Moran remains optimistic that a bipartisan privacy bill is feasible.
âAs this issue becomes more prevalent, as time goes on there will be a greater cry for this,â he said. âIâm certainly interested in talking to other Democrats to see if thereâs an opportunity to pursue this issue with them.â
To contact the reporter on this story: Rebecca Kern in Washington at rkern@bgov.com; Daniel Stoller in Washington at dstoller@bloomberglaw.com
To contact the editor responsible for this story: Zachary Sherwood at zsherwood@bgov.com
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