Advocates hopeful dueling privacy bills can bridge partisan divide

Advocates hopeful dueling privacy bills can bridge partisan divide
© Greg Nash

Key Democratic and Republican senators have offered dueling versions of legislation to create more privacy for Americans online in recent days.

The competing bills highlighted how months of bipartisan negotiations have yet to yield a proposal both parties can back but have also raised hopes of boosting those efforts.

The proposals — from the chairman and ranking member of the Senate Commerce Committee, which has jurisdiction over tech issues — show some substantive common ground. But there are still stark differences, with Republicans backing some of the tech industry’s top priorities while Democrats push tougher restrictions on how those companies handle data.


Sen. Maria CantwellMaria Elaine CantwellSenate Democrat calls on Facebook to preserve documents related to whistleblower testimony Biden says he has directed DOJ to focus on violence from unruly airline passengers Looking to the past to secure America's clean energy future MORE (D-Wash.), the ranking member of the Senate Commerce Committee, detailed Democrats’ privacy wish list when she released her bill with several senators on the committee last week.

“In the growing online world, consumers deserve two things: privacy rights and a strong law to enforce them,” Cantwell said in a statement at the time. She introduced her bill, which would codify new privacy rights for people on the internet and allow individuals to sue companies for violating those rights, alongside Sens. Brian SchatzBrian Emanuel SchatzDefense & National Security — Military starts giving guidance on COVID-19 vaccine refusals Blinken pressed to fill empty post overseeing 'Havana syndrome' Milestone bill would bar imports linked to forest destruction MORE (D-Hawaii), Amy KlobucharAmy KlobucharSenate Democrats ask for details on threats against election workers On The Money — Progressives play hard ball on Biden budget plan Schumer, McConnell headed for another collision over voting rights MORE (D-Minn.) and Ed MarkeyEd MarkeySenate GOP signals they'll help bail out Biden's Fed chair Biden likely to tap Robert Califf to return as FDA head Biden faces pressure to pass infrastructure bills before climate summit MORE (D-Mass.).

Days later, Senate Commerce Committee Chairman Roger WickerRoger Frederick WickerOvernight Defense & National Security — Presented by Raytheon Technologies — Nation mourns Colin Powell Pentagon, State Department square off on Afghanistan accountability White House scrambles to avert supply chain crisis MORE (R-Miss.) drew the GOP line in the sand as his office began circulating a draft bill that hews closely to the tech industry’s ideal proposal. Wicker’s bill would override any state privacy laws, including the tough California law that will go into effect in January, and does not allow individuals to sue companies over privacy violations, according to a draft obtained by The Hill. 

“Any privacy bill will need bipartisan support to become law,” Wicker said in response to the Democrats’ bill. “I am committed to continuing to work with the ranking member and my colleagues on both sides of the aisle to get a bill that can get across the finish line.”

Wicker and Cantwell stepped aside from a larger group of bipartisan senators to begin negotiating with each other over the summer. Those efforts had largely stalled for months as the two sides fought over whether any federal privacy law would override state laws, a provision called “preemption,” and whether the bill would empower individuals to bring lawsuits against companies for privacy violations, known as the “private right of action.” 

Sens. Richard Blumenthal (D-Conn.) and Jerry MoranGerald (Jerry) MoranSenate GOP signals they'll help bail out Biden's Fed chair Star gymnasts call on Congress to dissolve US Olympics board Expats plead with US to deliver COVID-19 vaccines MORE (R-Kan.) were both part of the previous larger effort to work up a privacy bill, and the two are now working together to put out their own legislation.

“Senator Blumenthal continues to work with Senator Moran on comprehensive, bipartisan privacy legislation and is grateful for the leadership shown by both Chairman Wicker and Ranking Member Cantwell on this critical consumer issue,” a Blumenthal spokeswoman told The Hill.

Stakeholders across the tech industry and privacy advocacy community told The Hill on Monday that Cantwell and Wicker’s bills are a clear signal that bipartisan negotiations were going nowhere. But they said the proposals could also breathe new life into the effort now that Republicans and Democrats have gone public with their priorities and revealed some substantial areas of mutual interest.

The Senate Commerce Committee will hold a data privacy hearing on Wednesday, during which lawmakers are expected to go public with their views on a variety of proposals to rein in tech companies’ unregulated collection of information on their billions of users.

Right now, the U.S. is one of the only countries in the Western world without a comprehensive law providing safeguards around how corporations collect personal information on their users.

One industry source described the current status of privacy negotiations on Capitol Hill to a public comment period following the release of a bill’s text. “I think the fact that they have both of these bills out there really helps the negotiation because others can get involved with some creativity and suggestions,” the source said.

Several basics in both bills are the same: They both require companies to prominently disclose how they are using data and obtain consent to process sensitive information, like a person’s location or Social Security number. They both allow individuals to see the data that companies have about them, offering them the right to delete or change information that they’re uncomfortable with. And they both push the government to take action against online practices that could result in discrimination against minorities or other protected groups.

“It’s interesting because when you look at the two bills, there are actually certain similarities in language and provisions,” Ferras Vinh, who works on public policy for privacy-focused tech company Mozilla, told The Hill. “A more positive takeaway is ... the two sides have obviously had a lot of conversations, in terms of what should be in a comprehensive privacy bill.”

“Nobody panic,” advised Michelle Richardson, a director with privacy group the Center for Democracy and Technology. “This is not an uncommon way for legislation to proceed. They’ll start closing the gaps between the two proposals.”

Cantwell’s bill, the Consumer Online Privacy Rights Act, would create a brand-new bureau within the Federal Trade Commission to enforce Americans’ digital privacy rights, while Wicker’s bill would expand the FTC’s authority and offer the agency new funds without mentioning new staff members.

Both bills include strong language ensuring that companies are not using sensitive data about race, sexual orientation or ethnicity to advertise products that touch on employment, housing or credit in an effort to bring decades-old civil rights laws into the digital age. But they differ on how to punish companies that are found to be violating those laws.

Caitriona Fitzgerald, a policy director with the privacy-focused Electronic Privacy Information Center, called both the Democratic and Republican proposals “much improved” on privacy from where they started months ago.

The House and Senate have embarked on largely separate efforts to draw up the country’s first comprehensive online privacy bill. Lawmakers on the House Energy and Commerce Committee have engaged in bipartisan negotiations over a potential bill for months, but Democrats have signaled they’re willing to put out their own party-line bill in the coming months.


“This is a really, really difficult issue to work through, in large part its sheer scope,” Vinh, from Mozilla, said. “You’re talking about an issue that touches every part of the economy at this point.”

It’s increasingly unlikely that the senators will put out any bipartisan privacy bill before 2020, when the election season will ramp up.

“The effort to get privacy legislation done has seen a boost over the last week,” the industry source said.

“I’d be surprised if there was new bipartisan language before the end of the year,” the source added, “but it makes it more likely that we will see it eventually.”