White House Official Says States Will Define Privacy Law Unless Congress Acts
The U.S. needs federal privacy legislation, said National Economic Council Special Assistant to the President Gail Slater Wednesday. “We can either define what it is we want at the federal level or have it be defined” by states, she told a Technology Policy Institute event. Federal privacy movement begins with Congress, and the administration is ready to “work constructively,” she said. NTIA’s privacy effort (see 1811130058) is on hold because of the partial government shutdown, she noted.
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Asked whether federal privacy legislation will pass in 2019, Slater told reporters it’s more important to “get good policy” than to work toward any “hard deadline.” There has been discussion that California’s 2020 privacy law implementation sets an artificial deadline because it’s driving industry to support something at the federal level, she noted.
An overlooked benefit of the FTC’s “case-by-case” approach to privacy enforcement is its flexibility, but a carefully crafted stature could build on that, said ex-acting Chairman Maureen Ohlhausen. Now at Baker Botts, Ohlhausen said it’s a clear harm when companies break promises to consumers. Much FTC investigatory action centers on that principle, she said.
The FTC “is doing a fine job” on privacy enforcement, Slater said. “Let’s codify what they’re already doing in some places and then strengthen the role.” She suggested civil penalties for first-time violators would incentivize companies to be more compliant and privacy-focused. She argued against building a “regulatory moat” around tech industry incumbents, a frequent criticism of the EU general data protection regulation. “We have an important role as competition advocates.”
Sen. Marco Rubio, R-Fla., introduced a bill Wednesday that would require the FTC to give privacy regulation recommendations to Congress 180 days after the bill’s enactment and detailed regulatory recommendations a year after that. If Congress fails to enact a privacy law two years from the initial bill’s enactment, the FTC would promulgate a final rule.
Any privacy legislation should have FTC input because of its expertise and understanding of “where some of the difficulties are,” Ohlhausen said when asked about the bill. Federal legislation attempting to mandate the executive branch raises concerns about separation of powers under Article 2 of the Constitution, said Sidley Austin privacy lawyer Alan Raul.
There’s a wide partisan divide in Congress on many issues, but privacy isn't one, said American Enterprise Institute Visiting Scholar Roslyn Layton. She warned the “seamlessness” of the digital economy will be broken up if every state enacts its own privacy law, arguing for a single, federal standard.