House Commerce Considering Privacy Markup Next Week

“We have to take the opportunity to move forward,” House Commerce Committee Chairman Frank Pallone, D-N.J., told reporters Tuesday, after leaving a legislative hearing on a bipartisan privacy discussion draft for the American Data Privacy and Protection Act. He declined to offer specific timing on a markup but said the committee is ready to formally introduce the bill. “It doesn’t mean we won’t take more input and maybe change some things, but” the draft discussion has bipartisan support from both chambers: “It’s a real opportunity.”

On timing for the markup, House Consumer Protection Subcommittee ranking member Gus Bilirakis, R-Fla., told reporters, “Soon. I can’t tell you whether it’s going to be next week or the following week.” The forward momentum is “so powerful right now that I really feel optimistic that we’re going to get this done,” said Schakowsky.

Committee members are still meeting with Senate Commerce Committee Chair Maria Cantwell, D-Wash., who hasn’t backed the draft discussion, despite support from ranking member Roger Wicker, R-Miss. Pallone agreed Cantwell has been a “willing participant. ... Most of the bill was what she put forward as well. There’s very few areas of disagreement with her.”

“We’re going to keep engaging with” Cantwell, said House Commerce Committee ranking member Cathy McMorris Rodgers, R-Wash. “The goal is to get a bill [passed] this Congress.” Rodgers said she was encouraged by Tuesday’s testimony, noting most witnesses see the discussion draft as a strong piece of legislation. The Senate is going to have to “work on” Cantwell “over there,” said Bilirakis. “I don’t know personally what her concerns are, but I think it would be much better, we’d have a much better chance, if we got her on board, all four corners.”

“The conversations are going” with Cantwell, said Schakowsky. “It is not hostile, and I’m still hopeful. ... We have three corners done right now, but I am hopeful that we can get her support as well.”

Cantwell supported inclusion of whistleblower protections after the hearings with Facebook whistleblower Frances Haugen. Whistleblower Aid CEO Libby Liu wrote both Commerce committees Tuesday, warning about the lack of means in the legislation for whistleblower disclosure or protection against unlawful retaliation.

If a federal law passes, it can’t undermine the “groundbreaking” laws passed in states like California, said Rep. Anna Eshoo, D-Calif., during the hearing. She said she will work with members to establish the strongest protections possible.

The bill strengthens the FTC by adding a new privacy bureau, a child-focused division and rulemaking authority, testified David Brody, Lawyers’ Committee for Civil Rights Under Law managing attorney-Digital Justice Initiative. He credited the bill’s inclusion of a private right of action, saying the FTC and state attorneys general don’t have the resources to pursue all consumer claims.

The bill’s actual knowledge standard for verifying user age is a workable and reasonable compromise, said ACT|The App Association Senior Director-Public Policy Graham Dufault. But legislators need to figure out what evidence qualifies as actual knowledge of a user’s age before expanding that aspect, he said. Doug Kantor, National Association of Convenience Stores general counsel, agreed with Dufault that “actual knowledge” is an important standard because sometimes conclusions about age can be incorrect online.

Common Sense Media Senior Counsel-Privacy and Tech Policy Jolina Cuaresma credited the committee for including a ban on targeted advertising for children under 17 but said the knowledge standard needs to be fixed. If companies are using age data for marketing proposals, they should also have to use that data in their legal divisions, she said. Online tracking activity could be used as a broad term and inadvertently result in blocking normal website functions, warned Information Technology Industry Council General Counsel John Miller: It’s critical to narrow the provisions. If not, it might make it difficult for an individual to use a search engine, forcing them to give consent with every search, he said.

The American Data Privacy and Protection Act compares “favorably” to global privacy frameworks like the EU’s general data protection regulation, said Bertram Lee, Future of Privacy Forum senior policy counsel-data, decision-making and AI. Ex-FTC acting Chairman Maureen Ohlhausen, now co-chair of the 21st Century Privacy Coalition, said the legislation needs improvement before any additional action. The bill “appropriately” seeks to replace the FCC’s traditional oversight of video privacy requirements with equivalent FTC authority, but the language “far exceeds” existing Cable Act requirements, equivalent satellite protections and “reasonable” obligations found in state privacy laws, she said. Electronic Privacy Information Center Deputy Director Caitriona Fitzgerald supported the bill’s data minimization requirements, which take the onus off users trying to protect their privacy.