Advocates hopeful dueling privacy bills can bridge partisan divide

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 Cantwell (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 Schatz (D-Hawaii), Amy Klobuchar (D-Minn.) and Ed Markey (D-Mass.).

Days later, Senate Commerce Committee Chairman Roger Wicker (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 Moran (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.”