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Cantwell’s elusive endorsement hinders data privacy talks

July 3, 2022 Updated Sun., July 3, 2022 at 8:22 p.m.

Committee ranking member Sen. Maria Cantwell, D-Wash., speaks during a 2020 hearing before Senate Commerce, Science and Transportation Committee at Russell Senate Office Building in Washington, D.C.  (TRIBUNE NEWS SERVICE)
Committee ranking member Sen. Maria Cantwell, D-Wash., speaks during a 2020 hearing before Senate Commerce, Science and Transportation Committee at Russell Senate Office Building in Washington, D.C. (TRIBUNE NEWS SERVICE)
By Cristiano Lima and Aaron Schaffer Washington Post

Early this year, Sens. Richard Blumenthal, D-Conn., and Marsha Blackburn, R-Tenn., struck a deal on a bipartisan data privacy bill aimed at breaking the long impasse on passing a federal law and earning the blessing of a top Republican.

But the proposal was rebuffed at the time by Senate Commerce Chairwoman Maria Cantwell, D-Wash., who declined to take it up, according to four people familiar with the negotiations, who spoke on the condition of anonymity to discuss the private talks. The response stymied what was otherwise seen as one of the most viable privacy proposals in years, the people said.

Now, Cantwell has grown critical of another major privacy effort negotiated by a trio of top lawmakers, threatening its chances of passage. Meanwhile, her own attempts to advance a privacy bill are facing external pushback.

Civil society groups, including privacy and civil rights advocates, have expressed strong reservations to lawmakers about key provisions in a recently circulated version of her proposal, the Consumer Online Privacy Rights Act, according to some of the people.

Chief among them is a clause to restrict the ability of consumers to bring class-action lawsuits against companies that allegedly have caused “substantial harm.” The wrinkle is seen as a potential “poison pill” measure that could hurt the bill’s prospects of garnering bipartisan support, two of the people said.

The provision was absent from a draft of the proposal that leaked after circulating in late May, but was included in a separate and expanded version circulated more recently, according to two copies reviewed by The Technology 202. Its addition could further muddle the increasingly contentious debate around data privacy, which has been bogged down for years amid partisan disagreements.

“They have not engaged Cantwell’s team on those concerns, and we’d be happy to have that discussion,” Tricia Enright, a spokesperson for Cantwell, said of the criticisms.

As chair of the Senate Commerce Committee, the panel with primary jurisdiction over data privacy, Cantwell plays a major role in determining the fate of any proposal. She controls what bills get marked up by the panel, a hurdle that proposals typically must clear before being considered by the full Senate.

To date, her panel has yet to take up any major privacy bill, including her own bill and the bicameral bill led by Sen. Roger Wicker, R-Miss., the top Republican on her panel, and Reps. Frank Pallone Jr., D-N.J., and Cathy McMorris Rodgers, R-Wash., the chair and ranking member on the House Energy and Commerce Committee, respectively.

Wicker had also been supportive of Blumenthal and Blackburn’s framework, three of the people said, but the bill has yet to be formally introduced. Spokespeople for Wicker did not return a request for comment. Spokespeople for Blumenthal and Blackburn declined to comment.

Cantwell has cited concerns that the proposals lack teeth when it comes to their enforcement mechanisms. In a blunt rebuke, Cantwell said the bill from Wicker, Pallone and McMorris Rodgers has “major enforcement holes” and that she was not close to backing it. Cantwell has criticized a provision in the bill delaying when consumers can file their own lawsuits.

The remarks drew blowback from activists, including Evan Greer, director of the progressive advocacy group Fight for the Future, who tweeted that Cantwell is not “operating in good faith in these privacy negotiations.”

A House subcommittee has unanimously advanced that bill, the American Data Privacy and Protection Act, marking the most significant development in efforts to pass a law to date. Spokespeople for Cantwell declined to speak to discussions between her and other lawmakers.

But a committee aide to the senator, who spoke on the condition of anonymity because they were not authorized to speak on the record, said they had concerns the proposal from Blumenthal and Blackburn, reviewed by The Technology 202, lacked sufficient protections against companies pushing consumers into forced arbitration, limiting the number of claims that make their way to court.

The aide pushed back on criticisms of the class-action language in Cantwell’s bill, which they called a narrow carve-out that would not affect most of its protections. The concerns from civil society groups, however, highlight that some advocates see weaknesses in her approach to privacy enforcement.

Lawmakers on her panel are also pushing to advance legislation that would boost protections for children online, headlined by a separate bill from Blumenthal and Blackburn, the Kids Online Safety Act. But the bill has languished since its introduction in February.

Cantwell had told Blumenthal the Senate Commerce Committee would mark up the proposal, according to four of the people, but the panel has yet to take it up.

Cantwell has publicly talked about wanting to hold a markup next month after the July Fourth recess, but it remains unclear what will be on the agenda.

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