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117th Congress Preview: Privacy

By Pam Turner

During the 116th Congress, over 30 privacy-related bills were introduced, numerous House and Senate hearings were held, and outreach was made to the tech industry and other outside interest groups.  While the goal of passing a privacy bill has wide bipartisan support and involves the efforts of several House and Senate committees, Congress—once again—failed to enact legislation.

As in previous years, the ultimate sticking points focused on pre-emption of stronger state laws (such as the CA law), giving private users the right to sue for privacy violations, and whether to provide users with an “opt in” option for private data use.  There is also interest among some supporters for language to create a new independent federal privacy agency.

The need for privacy legislation stems from a variety of familiar concerns:  data breaches, databroker activities, user control over personal data, and both industry and user concerns over a clear, consistent policy rather than having to deal with inconsistent and often conflicting state laws.  Also, the increased use of newer technology such as AI, facial recognition and digital assistants is raising concerns, as well as the increased dependence on internet usage during these COVID times, particularly regarding contact tracing and other health information exchange.  Finally, there are significant international aspects to the privacy debate in terms of the need to work with EU security and privacy efforts.

Two major bills were introduced in the Senate last fall—one by Senator Wicker (R-MS) who introduced the Safe Data Act, and one by Senator Cantwell (D-WA), the Consumer Online Privacy Rights Act.  The Wicker bill allows for state preemption and lawsuits; the Cantwell bill does not.  Both bills had several co-sponsors and we expect that some versions of these bills will be reintroduced early in the new Congress. Also, several House members are also expected to offer legislation.

Since the new Senate will have Democrats in the Majority, it is likely that Senator Cantwell will make this an early priority.  President Biden has expressed interest in supporting privacy legislation but has yet to outline the specifics of his proposal.

The current focus on the tech industry  at large is sure to lead to additional efforts in the privacy space, and the recent focus on social media issues are sure to spark privacy discussions may lead to additional efforts in the areas of cybersecurity, Sec. 230 liability reform, as well as supply chain issues.