Consumer rights

Why Washington’s grand plan to protect Americans’ data languishes

And that doesn’t bode well for Washington’s broader efforts to face the titans of the tech industry. The privacy impasse sets a precedent for how – or how little – this Congress can act on other more politically controversial issues, such as tightening antitrust laws to better control Silicon Valley, or tighter rules on how social media companies control their users’ posts.

Lawmakers on both sides generally agree that there should be limits to what personal information technology companies can extract from their users, and that those people should have a say in how their data is used. This makes privacy perhaps the least controversial technology policy debate Congress faces.

The privacy legislation is “certainly easier than the platform’s content issues – there are just fundamentally different worldviews, I think, on these issues between the two sides,” said Cameron Kerry, former General Counsel of President Barack Obama’s Commerce Department who led the development of this administration. a charter of privacy rights.

In contrast, Republicans and Democrats have widely divergent goals to reduce so-called Section 230 protections that prevent social media companies from being sued for what their users post. Republicans accuse platforms of censoring conservative voices and want to restrict websites’ ability to remove content. Democrats say businesses face consequences if they fail to eliminate hazardous materials and misinformation.

The antitrust is also increasingly politically charged, despite complaints from Democrats and Republicans that companies like Google, Facebook, Amazon and Apple control too much wealth and power. On top of that, “opening up competition laws is just inherently very complicated and it’s not the kind of thing that gets done in one Congress,” Kerry said.

The long-debated privacy law enjoys bipartisan support, and lawmakers have spent years working through some of the thorniest details. Those who follow the legislation closely described the latest drafts of major privacy bills from both sides as being around 80-90% in agreement.

The generally accepted plan: limit the data companies can siphon off their users, require those companies to have clear policies in place explaining what information they collect and how they use it, and give consumers control over how and sharing their data. with the others.

And the momentum to cross the finish line to privacy legislation was there. New privacy laws in states like California have stepped up pressure on Congress to act at the federal level, as are Covid-related privacy concerns for remote workers, students, and patients. The tech industry is even more and more lobbying for a federal privacy law in the hope of avoiding a patchwork of state rules that would make compliance more difficult.

But progress has been thwarted by new hurdles: a lack of urgency on the part of President Joe Biden, emboldened progressives pushing for a more aggressive agenda, and growing concern over threats to China’s privacy.

So instead of moving forward on a bill, the Senate Commerce Committee has not scheduled any imminent hearing or other legislative activity on the comprehensive national privacy law, according to a committee aide. President Maria Cantwell (D-Wash.) And senior group Republican Roger Wicker of Mississippi have yet to discuss the committee’s privacy agenda for this Congress, the aide said.

Leaders of the House Energy and Trade Committee have also made little progress in promoting a counterpart bill, although staff members plan to hold bipartisan roundtables on the issue soon.

Senator Chris Coons (D-Del.), Who chairs the Senate Judiciary Subcommittee on Privacy and Technology, told POLITICO in a recent interview that he struggled to see a “viable path” on the legislation.

Much of the hope for legislating this year rested on the idea that Biden would make data privacy a priority as it had been under Obama, said Omer Tene, vice president and chief knowledge officer of the International Association of Privacy Professionals. This administration has taken away the privacy of consumers “Bill of rightsAnd appealed to the Commerce Department to carry it out. But under Biden, that didn’t happen.

“You’d think a little push from the White House or Commerce might actually be enough to get there,” Tene said. “Now I’m not so sure it’s on hand in the near future.”

Instead, Biden has barely spoken publicly about privacy since taking office and has been slow to staff himself in key areas that will help shape Washington’s approach to the issue. He has yet to hire a permanent chairman of the Federal Trade Commission, the country’s leading consumer protection agency. And the The Commerce Department, responsible for leading negotiations on an EU-U.S. Deal to govern international data transfers, continues to add to its ranks.

But even though data privacy has captured the full attention of the President and Congress, the move to a Democrat-controlled Washington makes compromise more difficult.

Lawmakers had planned to spend these months resolving the two remaining, largely partisan points of contention: whether a federal law should prejudge state rules, and whether individuals should be able to sue companies for breaches of the law. private life.

But progressives’ calls for a privacy bill to include even stronger protections – including on civil rights issues like algorithmic discrimination – are become stronger this year with support of civil society groups. This creates a new hurdle that could force leaders on both sides of the aisle to rethink where and to what extent they will compromise. A number of civil society groups have come together around a civil rights-focused privacy bill introduced last year by Sen. Sherrod Brown (D-Ohio), even after long-standing proposals from Cantwell and Wicker.

But perhaps China has been the most surprising element in the fight for a privacy law.

Lawmakers have focused on bills focused specifically on protecting Americans’ data from the Chinese government – potentially at the expense of more comprehensive privacy law.

“We are legislating on privacy by working to ban Chinese technology,” said Samm Sacks, senior researcher at the Paul Tsai China Center at Yale Law School, who specializes in the geopolitics of data privacy.

Lawmakers introduced hundreds of bills and resolutions related to China in the last Congress and offer even more focus on data this session, including a proposal Democratic Senator Ron Wyden of Oregon to effectively prevent sensitive American information from being sold to foreign adversaries.

But focusing solely on China means blurring the important distinctions between privacy, security and economic competitiveness, Sacks said, adding that this in turn works on the fringes of regulating U.S. businesses. Legislation to counter Chinese data collection does not address the huge amounts of user data collected and monetized by companies such as Google, Apple, Facebook and Amazon, based in the United States.

The other big tech issues are likely to face similar headwinds, even if lawmakers can resolve their partisan divisions. Biden has so far said little about his plans for Section 230, although he said during the election campaign that he wanted to remove it, and he has yet to fill key anti-trust positions at the Department of Justice and the FTC. Progressives in his administration want to push for more aggressive antitrust action against Silicon Valley. And the big tech bill now going through Congress doesn’t focus on any of these issues, but rather on ways to increase American innovation to stay ahead of China – a goal that can sometimes conflict with efforts to curb US tech companies. Power.

For privacy, some in Washington are pushing other avenues to implement protections.

The FTC commissioners are floating making a regulation to fight against “unfair” or “deceptive” practices and better protect consumers’ privacy. The United States and the European Union are also trying to strike a deal on a new iteration of the so-called Privacy Shield to govern how user data is shared across the Atlantic, which could provide more general safeguards.

And privacy advocates are hoping the desire to be globally competitive could spark action in Congress.

The European General Data Protection Regulation, a sweeping law that went into effect in 2018, has already given a boost to US efforts, and now China may well have a consumer privacy law. before the United States. The Foreign Power Privacy Act will likely be enacted in the fall.

“When China has a consumer protection law before the United States, and we’re one of the only democracies in the world without… we’re at a huge disadvantage,” said Jules Polonetsky, CEO of Future of Privacy Forum. “We are not on the playing field.”

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