After years of negotiations, members of the U.S. Senate and House of Representatives have released bipartisan comprehensive privacy legislation—the American Data Privacy and Protection Act. Democrats and Republicans have put forward separate proposals in the past that have more in common than different. The two main points of disagreement that have historically stalled a comprehensive proposal are whether there should be a private right of action for privacy violations and to what extent federal laws should preempt state laws. Even though this new draft takes novel approaches to both of those issues, division continues. The chances of Congress passing privacy legislation this session or the next will turn on whether a broader consensus can be found in these two areas, especially after outside stakeholders and the business community now have an opportunity to fully engage.
Aside from the private right of action and preemption, there is general agreement on how personal information should be collected, used, and shared. For example, the main Democratic proposal, the Consumer Online Privacy Rights Act (S. 3195) introduced by Senator Maria Cantwell (D-WA), creates consumer rights to delete or correct data and port personal information. Likewise, Republicans, led by Senators Roger Wicker (R-MS) and Marsha Blackburn (R-TN), have introduced the Setting an American Framework to Ensure Data Access, Transparency, and Accountability (SAFE DATA) Act (S. 2499), which would do largely the same. The American Data Privacy and Protection Act unsurprisingly follows along these lines as well. The most notable differences between the parties’ positions have been that the Democratic proposal has a private right of action, while the Republic version has no private right and would completely preempt state law. The challenge continues to be finding a middle ground between these two approaches. In particular, whether there is a way to address concerns about repeated lawsuits and opportunities to preserve at least some ability for states to enact and enforce their own regulations.
Continue Reading IS CONGRESS ABOUT TO PASS COMPREHENSIVE PRIVACY LEGISLATION?