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‘Stumbling Blocks’ Remain

Ex-FTC, Consumer Reps, Industry to Testify at House Privacy Hearing

Seven witnesses representing industry and consumer groups are expected to testify with a former FTC chair at Tuesday’s House Consumer Protection Subcommittee legislative hearing on a bipartisan privacy discussion draft, according to committee materials reviewed Friday.

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Witnesses are ex-FTC acting Chairman Maureen Ohlhausen, Information Technology Industry Council General Counsel John Miller, ACT|The App Association Senior Director-Public Policy Graham Dufault, Common Sense Media Senior Counsel-Privacy and Tech Policy Jolina Cuaresma, Electronic Privacy Information Center Deputy Director Caitriona Fitzgerald, Lawyers’ Committee for Civil Rights Under Law Managing Attorney-Digital Justice Initiative David Brody, Future of Privacy Forum Senior Policy Counsel-Data, Decision Making and AI Bertram Lee and National Association of Convenience Stores General Counsel Doug Kantor. Ohlhausen will speak as co-chair of the 21st Century Privacy Coalition.

Subcommittee ranking member Gus Bilirakis, R-Fla., told us he soon expects the panel to do a markup on a bill (see 2206080054). Senate Commerce Committee Chair Maria Cantwell, D-Wash., hasn’t backed the draft proposal. “We’re making good progress with a lot of people,” she told reporters last week. A lot of groups have expressed concerns about the draft, she said, noting she hopes to sit down with House counterparts to work through “stumbling blocks.” Congress needs to pass a strong bill if it’s going to preempt state law, she said: Some states already have “very strong laws on the books,” many more from the Democratic side, she said.

Rep. Suzan DelBene, D-Wash., told us her office is still reviewing the draft proposal before taking a stance. DelBene and California Democrats have hesitated to support major pieces of legislation targeting the tech industry (see 2202090066). DelBene said she’s “glad” there’s a specific proposal in the House, but “I want us to move to a strong privacy law.”

It’s important not to have 51 different, separate privacy laws, and it’s important to reassert American leadership on this issue,” Senate Intelligence Committee Chairman Mark Warner, D-Va., told us. “I’m anxious to take a look at” the draft proposal.

It’s important there’s bipartisan discussion, and civil rights provisions included in the draft are a “critical breakthrough,” but the legislation, as written, won’t protect privacy, said Center for Digital Democracy Executive Director Jeff Chester in an interview Friday. It doesn’t give the FTC sufficient rulemaking and enforcement authority to rein in data abuses, he said. The agency needs Administrative Procedure Act rulemaking authority to define targeted advertising, data minimization and other details, he said.

If Congress moves forward with the bill, the language needs to be made stronger, said Electronic Frontier Foundation in a statement. Improvements should ensure the bill doesn’t “freeze progress on improving privacy rights, does change company practices through strong enforcement, and does not diminish the privacy rights Americans across the country currently have." EFF noted the draft proposal reflects the work of privacy, civil rights and consumer advocates over the past decade.

The bill still needs improvements, but it shows the two sides are willing to compromise on key issues like a private right of action and preemption, TechNet Senior Vice President Carl Holshouser said when the draft was released. “As more states pass their own privacy laws, failure by Congress to take action will cost our economy more than $1 trillion over 10 years, with more than $200 billion being paid by small businesses.”

The draft “unfortunately falls short in terms of protecting responsible data use,” Privacy for America said in a statement: “Any new law must preserve the responsible use of data that has expanded the availability of news and other engaging online content, helped small and medium sized businesses reach new customers, fueled the creation of millions of jobs, and delivered myriad benefits to consumers.” Center for Democracy and Technology CEO Alexandra Reeve Givens called the draft a “hopeful first step.” CDT lauded provisions on data minimization, consumer rights to access and delete data, requirements to minimize algorithmic damage and the civil rights language.