Ed's Blog

Consumer Privacy Fight In Congress Intensifies

By Ed Mierzwinski
Senior Director, Federal Consumer Program

In June, just over six months from the January 2020 start date for the California Consumer Privacy Act, the media are reporting that the much ballyhooed bi-partisan Senate efforts to enact an umbrella privacy law on Capitol Hill are stalling. That's true for the moment, but never doubt that the powerful special interest lobby led by BigTech, BigPhone and the pesky cable guys will ever shut down its efforts to pass a law to continue business as usual (collecting, sharing and selling all your information for profit), prevent consumers from gaining privacy and digital rights and preempt states from doing a better job. They've got an army of lobbyists, lawyers and PR flacks and a war chest of money urging passage of that self-serving law. 

Pushback from legislators with stronger state laws is helping slow them down. So are the welcome efforts of civil rights groups to demand that digital or other algorithmic decisions not discriminate. There's an important civil rights briefing at 3:30 pm this afternoon on Capitol Hill. It features Rep. Jan Schakowsky (IL), chair of the Consumer Subcommittee of the House Energy and Commerce Committee, as well as Reps. Yvette Clarke (NY) and Robin Kelly (IL), both also committee members. Other speakers are primarily civil rights colleagues to make the case for ensuring that any digital decision-making -- whether by algorithms (yesterday's news) or artificial intelligence (latest shiny new toy) -- be fully transparent, non-discriminatory and in compliance with civil rights laws. The event is co-sponsored by Public Citizen, U.S. PIRG, and other members of the Privacy and Digital Rights for All coalition (scroll down for members) that a number of consumer, civil rights and privacy organizations founded early this year.

Our coalition has a framework for privacy and digital rights protection. It also has a set of detailed factsheets on issues, including:

-- Why preempting state laws hurts privacy protection.

-- Why we need a new Data Protection Agency to replace the over-worked and under-powered FTC.

-- Establishing algorithmic governance to advance fair data practices.

-- Enforce Fair Information Practices.

In addition to California, many other states are passing and enacting new privacy laws. Most recently, Maine's governor signed a law this month. Another driving force for privacy has been European enactment, in 2018, of its General Data Protection Regulation (GDPR). We are pleased that Senate Commerce Committee members led by Dick Blumenthal (CT), Brian Schatz (HI) and ranking member Maria Cantwell (WA) are holding off efforts by the industry to convince the committee to jam through an industry-friendly GDPR-very-lite that throws a few sops to the states, then likely takes them off the board as innovative privacy leaders forever.

The leadership of Chairwoman Schakowsky, and the House itself, in asserting its own role, is also critical. Any federal privacy law must take into account the good work that the states have done and are continuing to do. It should recognize that a privacy law must have good enforcement that includes a private right for consumers to protect their own privacy if harmed. And, of course, any new privacy laws should recognize that the complex, but very limited, notice and choice regime offered by the data collectors only serves their own powerful special interests, and doesn't protect the privacy of or provide digital rights for consumers or citizens. We should not be products for sale. Business as usual won't do. In Europe, privacy is a human right. In California, it is guaranteed by the state's Constitution. We should not allow special interests on Capitol Hill to make it a commodity for sale.

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