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Senate holdouts pose hurdle to surging privacy push in Congress

June 19, 2022 Updated Sun., June 19, 2022 at 9:58 p.m.

By Cristiano Lima Washington Post

Congress is now dangerously close to striking a deal on a federal privacy law. It could fulfill years of pledges by lawmakers to rein in alleged data abuses by Silicon Valley.

Lawmakers touted their progress in those stalled efforts at a House hearing Tuesday, where officials, industry leaders and advocates discussed a major new draft bill, the bipartisan and bicameral American Data Privacy and Protection Act.

“This is the best opportunity we have had to pass a federal data privacy law in decades,” Rep. Cathy McMorris Rodgers of Washington, ranking Republican on the House Energy and Commerce Committee, said during her opening remarks.

But even as lawmakers get closer than ever to advancing a broad data privacy bill for the first time, skepticism from several key senators remains a major roadblock.

Sen. Richard Blumenthal, D-Conn., one of the lead privacy negotiators in the last Congress, voiced concerns that the latest legislative proposal would be too difficult to enforce and its plan to give consumers a right to bring lawsuits against companies too limited.

“I have a number of concerns, particularly relating to private rights of action, potential impediments to effective enforcement,” he said. “I don’t think I can support it right now.”

Sen. Brian Schatz, D-Hawaii, another member of a working group that led privacy talks in the last Congress, reiterated objections that the proposal does not create a strong enough mandate for companies to treat user data reasonably and not use it to cause harm, which is often called a duty of care.

“It seems to me that any company not permanently harming consumers with the data should be comfortable with a duty of care, just like doctors and nurses and lawyers and tax preparers” pledge “not to use it against the interests of their client,” Schatz said. He added: “If they fix the duty of care, I’ll be a yes. If they don’t, I won’t.”

While the legislation is backed by the top Democrat and top Republican on the House Energy and Commerce Committee, as well as the ranking member on the Senate Commerce Committee, the top Democrat on the Senate committee remains a holdout.

After the trio of lawmakers unveiled the legislation earlier this month, Senate Commerce Chairwoman Maria Cantwell, D-Wash., issued a critical statement. “For American consumers to have meaningful privacy protection, we need a strong federal law that is not riddled with enforcement loopholes,” she said, voicing the concerns echoed by Blumenthal.

Cantwell also appeared to criticize language in the proposal that would delay when users can file individual lawsuits against companies by four years, a bid to give regulators time to review. She indicated she shares the concerns raised by Schatz about not imposing a greater duty of care.

There are concerns among lawmakers that a broad duty of care standard would likely be struck down by the courts, which in recent months appear to be growing increasingly critical of federal agencies using powers not clearly delineated by Congress, according to one legislative aide familiar with the discussions who spoke on the condition of anonymity because they weren’t authorized to speak on the record. The language has also largely been a Democratic priority and may struggle to garner broad bipartisan support.

House Energy and Commerce Chairman Frank Pallone Jr., D-N.J., one of the lawmakers leading the new bill, said Tuesday that he sees far more agreement than disagreement between those leading the bill and Cantwell. “Most of the bill was in what she put forward as well,” he told reporters on the sidelines of the hearing, adding that there are “very few areas of disagreement.”

After years of disagreements on key issues including a private right of action and whether a federal mandate should override state standards, lawmakers managed to come to a preliminary agreement on not only those but other contentious provisions, including civil rights protections around data use and data safeguards for children.

Pallone said the trio of lawmakers continue to meet with Cantwell to try to win her support, and he thinks striking a final agreement is doable this Congress. McMorris Rodgers agreed. “We are going to keep engaging with her, and the goal is to get a bill this Congress,” McMorris Rodgers told reporters Tuesday.

But lawmakers know the legislative calendar is dwindling, with the yearly August recess looming around the corner and the midterm elections following shortly thereafter. “I don’t want to wait too long because we are running out of time,” Pallone said.

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