On Wednesday, the Senate Commerce Committee held a long-awaited hearing on data privacy legislation.
Lawmakers generally agree they need to pass data privacy legislation, but they still have not come to a consensus on what exactly a bill needs to look like— even after working together on the issue privately all year.
The top lawmakers on the committee, Chairman Roger Wicker (R-MS) and Ranking Member Maria Cantwell (D-WA) recently released their own plans for data privacy. Wicker began circulating a draft bill and released a fact sheet about his plans, while Cantwell unveiled her bill last week.
“It is clear that Congress needs to act now to provide stronger and more meaningful data protections to consumers and address the privacy risks that threaten their prosperity in the nation’s digital economy,” Wicker said.
In her opening statement, Cantwell outlined her priorities for a national privacy law.
“You should have the right to make sure your data is not sold, that you have the right to make sure your data is deleted, that you have the right to make sure that you’re not discriminated against with data and the right to just have plain old transparency about what is being done on a website,” said Cantwell. “All of these things are tangible and meaningful for consumers. I say they just need to be clear as a bell so that people understand what their rights are and they know how to enforce them.”
Reasons for optimism
While many have been skeptical that lawmakers can send a data privacy bill to the president’s desk during this Congress, the fact that key lawmakers are putting their priorities on paper and the full Commerce Committee held a hearing might be reason for a little hope.
“Consumers deserve meaningful and consistent privacy protections nationwide,” Business Roundtable CEO Joshua Bolten said in a statement. “Today’s hearing coupled with the proposals that have been introduced or released in the Senate are steps in the legislative process toward strengthening protections for American consumers and establishing a framework to enable continued innovation and growth in the digital economy,” he said Bolten.
Sen. Marsha Blackburn (R-TN), who serves on the Commerce committee and leads a big tech task force on the Judiciary committee, told Yahoo Finance she was optimistic after the hearing.
Blackburn and several other lawmakers on the committee have already introduced bills tackling specific privacy issues — but the committee is trying to develop a broader, national framework. Sen. Richard Blumenthal (D-CT) and Sen. Jerry Moran (R-KS) are also working together in an attempt to find common ground.
“I do want a law. Not just a bill. A law isn’t going to happen unless it’s bipartisan,” said Blumenthal. “These issues are not easy, but we have a responsibility.”
Federal vs. state laws
One of the differences between the Republican and Democratic plans is whether the federal law will pre-empt state laws.
Wicker’s proposal would establish a nationwide standard that overrides state privacy laws, like California’s — which is set to go into effect in January. Cantwell’s bill would not override state law “if it affords a greater level of protection to individuals.”
Wicker, along with other Republicans and some experts, argued a nationwide standard would give businesses clarity and consistency.
“I’m concerned that if we have to go state-by-state to cover everyone in this country with a privacy law, we’re going to be on the next version of the internet,” said Michelle Richardson, with the Center for Democracy and Technology in the hearing.
A Walmart representative made the case that a uniform federal law would also benefit consumers.
“Simply adding more complexity to consumers’ lives is not actually, I think, helping their privacy,” said Nuala O’Connor, Walmart’s Senior Vice President and Chief Counsel for Digital Citizenship.
But Laura Moy, a professor at Georgetown University, said a federal law shouldn’t “step on states’ toes.”
Congress “should not eliminate existing protections that already benefit Americans at the state level. Nor should it pre-empt the states’ right to develop new ways to protect their citizens. States are innovating in this space right now and making valuable contributions,” said Moy.
Moy also encouraged lawmakers to make sure any bill has “robust enforcement.”
“It is not enough to create rights in name only. We need bold action to design a law to be vigorously enforced so that data practices will change dramatically, as they must,” said Moy.
After the hearing, Cantwell told Yahoo Finance enforcement would be the biggest sticking point in trying to pass legislation next year.
“Enforcement is going to be the key to making sure that privacy rights are actually upheld, and that the consumer is truly protected,” she said in the hearing.
In an interview with Yahoo Finance, Blackburn said she thinks lawmakers will be able to fine-tune penalties and enforcement mechanisms as discussions continue. She added instead of one all-encompassing bill, lawmakers could pass several small bills.
“Oh yeah, I think it will happen this Congress,” said Blackburn. “Consumers are beginning to demand this.”
Jessica Smith is a reporter for Yahoo Finance based in Washington, D.C. Follow her on Twitter at @JessicaASmith8.