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Spokane, Washington  Est. May 19, 1883

Sen. Cantwell wants online privacy law, but critics say she’s slowed efforts for years

By Cristiano Lima-Strong Washington Post

When Maria Cantwell first ran for the U.S. Senate, she championed what was then an unconventional political cause: internet privacy.

“What you do on your computer should be your business, and no one else’s,” Cantwell, the dot-com millionaire and former U.S. House member, said in a 2000 campaign video that showed her huddled around a clunky white desktop monitor with a group of schoolchildren. The internet, she said, should remain “a tool for learning,” not for governments and private companies to “invade your privacy.”

Twenty-four years later, Cantwell (D-Wash.) has finally unveiled a bipartisan agreement aimed at achieving that vision. But the path ahead remains murky. As the Senate Commerce Committee chair, Cantwell has unusual power to regulate the tech industry’s abuses, but her panel’s track record is sparse: Of dozens of bills introduced to address privacy, content moderation, even artificial intelligence, few have advanced.

“That’s where a lot of the tech legislation goes to die is that committee,” said one House aide. “It’s a graveyard over there.”

Cantwell herself is a primary reason for the impasse, according to more than a dozen current and former congressional aides in both parties, and others familiar with the committee’s dynamics, all of whom spoke on the condition of anonymity to speak candidly about the powerful senator. Some said they feared retaliation.

Cantwell has repeatedly upended privacy negotiations. In 2019, she broke up a working group trying to hash out a compromise. In 2022, she rebuffed a landmark agreement from three key lawmakers, a first-of-its kind bipartisan deal. Again and again, aides said, she has thwarted promising talks by refusing to iron out key disputes, speaking out publicly against colleagues’ efforts and not empowering her staff to fully negotiate.

Cantwell spokeswoman Ansley Lacitis said in a statement Friday that prior privacy negotiations “fell through when they couldn’t agree on strong day-one enforcement mechanisms” and other sticking points. Cantwell “appreciates strong staff leadership and has been impressed by staff on negotiating major policy settlement” on issues such as equal pay, prescription drug pricing and consumer fraud, Lacitis said.

Some former Senate aides, who spoke on the condition of anonymity to candidly discuss dynamics, pushed back on the characterizations in this report. Two described the senator as hard-working. “She’s not a show horse. She gets things done,” said one aide who worked for Cantwell. Another former Cantwell aide said that while it’s “definitely a member-driven office,” the senator is “dogged” and “deliberative.”

On Sunday, Cantwell heralded a breakthrough privacy measure with House Energy and Commerce Committee Chairwoman Cathy McMorris Rodgers (R-Wash.), marking the first time the leaders of the two critical committees had agreed on a plan to establish a federal baseline for what data companies can collect online and to give consumers new privacy rights. Lawmakers, privacy advocates and industry leaders praised the deal, one of the most sought-after pieces of internet policy in Washington.

But at least five aides said it was the type of agreement that could have been struck years ago. And there’s still skepticism about Cantwell’s ability to close out the process. “Expectations are low,” said one Senate aide.

Cantwell launched her first senatorial bid shortly after helping the streaming software company RealNetworks weather a major privacy scandal.

Advocates revealed the tech firm’s music player could secretly collect data on users’ listening habits. Cantwell, RealNetworks’ former marketing chief, has said the incident influenced her thinking about the need for privacy protections.

On her campaign website, privacy got near-top billing. “The government has an obligation to set the ethical and legal standards for the management of personal data, and to enforce those standards,” she wrote at the time.

But her role swelled much later, in 2019, when Cantwell became the senior Democrat on Senate Commerce. Her ascension came as fury with Silicon Valley – partly fueled by the 2018 Cambridge Analytica privacy scandal – was starting to generate legislative activity.

The European Union had implemented its own sprawling privacy protections, known as the General Data Protection Regulation, or GDPR, as had California, and U.S. lawmakers pushed to follow suit.

A bipartisan working group led by then-Commerce Chairman Roger Wicker (R-Miss.) was making steady headway toward a national bill to protect consumers’ personal information. When Cantwell and then-Senate Majority Whip John Thune (R-S.D.) joined the group, the expansion was touted as a sign of growing momentum.

But Cantwell undermined the negotiations, according to five current and former Senate aides, publicly questioning whether other group members were committed to producing a “strong bill” and remaining “noncommittal” and “sullen” in private meetings with the members.

The discussions took a sharp turn a couple of months after the expansion, when Cantwell pushed to narrow the negotiating pool to just herself and Wicker.

“Nothing really happened after that,” said one aide. Cantwell and Wicker rolled out separate privacy proposals later that year.

The two sides remained apart on key sticking points – whether a federal law should override state privacy measures, as Republicans wanted, and whether consumers should be able to sue companies directly, as Democrats desired. The disputes have long befuddled negotiators.

But many aides said the episode was part of a pattern: Cantwell would publicly criticize other members’ tech initiatives, take umbrage at lawmakers leading them in her stead, and then either let the push fizzle or quash it behind closed doors.

“Legislation would be worked on for months, hours and hours and hours of staff time would be invested, member conversations would be had, and then all of the sudden things would go in a completely different direction,” said a former Senate aide.

It’s a trend several aides said they fear will be repeated in other negotiations, including over the fate of a recently passed House bill targeting TikTok, the popular video-sharing app, which has been besieged by allegations that its China-based parent, ByteDance, poses a national security risk.

Cantwell has said the Senate should consider the issue and had been drafting an alternative proposal to address the concerns around TikTok. But last month, she poured cold water on the House bill, telling Politico, “That one, I don’t think will make it all the way through.”

Cantwell and the other leaders of the Commerce and Intelligence committees have agreed to amend the House legislation, but staffers have had difficulty pinning down what updates she is seeking, according to a person with knowledge of the talks. When asked about it, Cantwell’s office referred to a Politico article published Thursday in which an unnamed Commerce aide said the senator is in talks with other lawmakers about changes to the bill.

Some senators have called on Senate Majority Leader Charles E. Schumer (D-N.Y.) to bypass Commerce – and Cantwell – by bringing the TikTok bill straight to the Senate floor for a vote. Schumer has not commented on the idea.

Some lawmakers and advocacy groups have argued that Congress would not need to worry so much about TikTok if it just passed a broader privacy law. But for years, many bills aimed at grappling with the powerful tech sector have hinged on the House and Senate commerce panels, where relationships have soured.

In 2022, Cantwell was notably absent from a deal struck by three of the four leaders of the committees on a landmark draft privacy proposal. Cantwell publicly torched the bill a few weeks later, arguing it had “major enforcement holes” and urging other lawmakers to “come back to the table on something strong.”

But weeks prior, Cantwell privately accused the group of cutting her out of the discussions and then walked away from the negotiating table, according to more than a half-dozen current and former Senate and House aides. Afterward, Cantwell’s office combatively declined to engage with lawmakers on their legislation, several aides said.

Cantwell rebuked a provision in the bill delaying when consumers could bring lawsuits against companies and called for protections against forced arbitration, an issue she also raised in 2019.

“She wanted to do her own thing and couldn’t be swayed to work collaboratively,” said a former House aide. Another aide said the dynamics created significant “bad blood” between Cantwell and her counterparts.

On Sunday, Cantwell said the “four corners” group’s effort “didn’t go where it needed to.” Lacitis, her spokeswoman, said that at the time, Cantwell was also helping lead efforts to pass “one of the most consequential pieces of legislation to reinvigorate American manufacturing” in the semiconductor industry.

A spokesman for Wicker declined to comment. In a statement, top House Energy and Commerce Democrat Frank Pallone Jr. (N.J.) said: “Senator Cantwell and I have both passed legislation out of our committees that would finally begin to hold Big Tech accountable, but getting them across the finish line is challenging. I’m optimistic that we’ll make meaningful progress together in the months ahead.”

On Wednesday, McMorris Rodgers said she was “encouraged” she and Cantwell were able to “hammer out language to address the sticking points and reach an agreement” on a new bill.

The Washington Post first contacted Cantwell’s office for an interview last month before lawmakers went on a two-week recess, during which The Post contacted dozens of current and former aides. Plans for an interview were delayed until Sunday. Two days before then, on April 5, Punchbowl News was the first to report on Cantwell’s privacy deal.

On Sunday, Cantwell told The Post that McMorris Rodgers, another influential member of Washington state’s congressional delegation, approached her in December with an idea for breaking the logjam on privacy: “Maybe a Northwest perspective could work here.”

Cantwell’s opposition was not the only hurdle for the 2022 privacy bill. Other Senate Democrats, including Richard Blumenthal (Conn.) and Brian Schatz (Hawaii), expressed concern that its enforcement and protections were lacking. Months later, then-House Speaker Nancy Pelosi (D-Calif.) criticized the bill for overriding protections in California.

The House bill was never brought to the floor.

Multiple aides said Cantwell has often not given her staff enough license to speak on her behalf, causing delays that threaten already tenuous momentum. “The staff aren’t empowered enough to feel like they can be in a room and cut the deals that need to be cut,” said a former House aide.

Turnover has also been an issue, aides said.

Cantwell was tied for the second-highest staff turnover rate of any current senator between 2001 and 2022, behind only Sen. Amy Klobuchar (D-Minn.), according to data compiled by LegiStorm, a research organization that tracks personnel changes on Capitol Hill. In 2019 and 2022, two key negotiating years on privacy, Cantwell ranked third and 36th, respectively.

Cantwell has lost several top committee aides in recent years, some of whom decamped for jobs at major tech companies including Meta. Other Cantwell staffers have lobbied or consulted for TikTok.

Cantwell, who has served as Washington’s junior senator since 2001, has long-standing ties to tech leaders in and outside of Washington beyond her time at RealNetworks.

Staffers from Microsoft and Amazon – both headquartered in her state – have been among Cantwell’s biggest political contributors over the past five years, according to OpenSecrets, an organization that tracks campaign donations.

Her past tech and telecom donors have included Amazon Web Services CEO Adam Selipsky, Microsoft President Brad Smith, T-Mobile CEO Mike Sievert and Amazon founder Jeff Bezos, who owns The Washington Post, according to a review of federal campaign disclosure forms.

None of the aides interviewed for this report presented any evidence of potential improper influence, instead largely attributing her disputes with other members on tech to a mix of personality clashes, political squabbling and policy differences.

In recent years, Senate Commerce has twice advanced a bill to expand federal privacy laws for children and another sweeping measure led by Blumenthal and Sen. Marsha Blackburn (R-Tenn.) to force tech companies to take greater steps to protect children from harm. Both lawmakers expressed gratitude for Cantwell’s support in written statements.

Sen. Jerry Moran (R-Kan.), a member of the 2019 privacy working group, said Cantwell has “been helpful in including me in meetings and conversations.” He added: “Everything takes a while around here.”

Schumer called Cantwell “one of the most productive and effective members” of the chamber and said she is “working doggedly to achieve bipartisan results” on Commerce.

But some aides said her dizzying approach to negotiations isn’t distinct to tech: The same dynamics that have rankled staffers have reared in other areas such as telecom and transportation policy.

Cantwell “has been redefining transportation policy with investments in freight, megaprojects, and fish passage,” in addition to advancing aviation safety legislation, Lacitis said.

Several Senate aides criticized her for not holding more hearings on tech issues this Congress. Senate Commerce has held hearings on internet access, robocalls and artificial intelligence. But it’s been over two years since it’s held a session focused on privacy or social media regulation, major issues it has primary jurisdiction over. Other panels, including Senate Judiciary and House Energy and Commerce, have been far more active.

Cantwell’s landmark agreement with McMorris Rodgers on a draft proposal, however, has renewed hope a long-sought federal privacy law could once again be within reach. Cantwell said that getting House GOP leaders to sign off on language barring forced arbitration and removing the delay on when consumers can bring lawsuits was key to reaching a compromise.

“It just takes a while for these issues on how to protect those rights to be specified,” Cantwell said. She called the new bill stronger and “night and day” from the House proposal in 2022.

Asked what it would mean to her personally to finally pass federal privacy standards after years of unsuccessful attempts, Cantwell demurred: “It’s hard to comprehend. It’s kind of hard to comprehend … so I’ll just leave it at that.”