Wicker-Cantwell Divide Over Private Right of Action Looms in Privacy Debate
Senate Commerce Committee Chairman Roger Wicker, R-Miss., hopes to deliver draft privacy bill text by Labor Day, but he and ranking member Maria Cantwell, D-Wash., remain divided over including a private right of action (see 1907090049). Wicker acknowledged to reporters that Cantwell wants it included, but he told us it’s a “nonstarter.” A private right of action, which is included in the California Consumer Privacy Act for certain data violations, allows consumers individually to sue violators.
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“It is a nonstarter to think of tens of thousands of plaintiffs’ lawyers going to court over” privacy violations, Wicker said. “It’s not something that can ever pass.” Cantwell’s office didn’t comment. Asked later how he can reconcile such a disagreement, he told reporters: “Just like any negotiation, you have to look at the possible. If I’m seeking something that’s just [impossible] to get 60 votes for, I’m going to have to think of a different approach.”
Commerce’s top Republican and Democrat met Tuesday in what Wicker described as a “very productive meeting.” They have been negotiating bilaterally since the original working group of four, eventually expanded to six, fractured when Cantwell suggested the group wasn’t the best route to consensus.
Sen. Jerry Moran, R-Kan., an original working group member, said he and Sen. Richard Blumenthal, D-Conn., another member, are still preparing to craft their own privacy bill. “We’re anxious to introduce or circulate something that is a Moran-Blumenthal version,” Moran told reporters. Blumenthal insisted various members are involved: “There is no pride of authorship here or first introduction. The main goal here is to do it right,” he told reporters.
Cantwell might have left the working group, but it still crafted strong, bipartisan legislation, a Moran aide said. Moran and Blumenthal continue working through legislative language similar to the group’s, said Moran, who's pushing for the "earliest opportunity" for committee consideration. There are “several drafts in the works,” according to Blumenthal.
Wicker hasn’t examined legislative language from other members, but he said, “I’m tickled pink that we’ve got a number of minds at work.” Moran hasn’t seen any of the concepts Cantwell is reportedly circulating but said he was told they’re similar to the original group’s work. Blumenthal said he expects full participation from Wicker and Cantwell: “We’re working as quickly as we can given the challenging issues involved in drafting this kind of legislation.”
Blumenthal “strongly” supports granting the FTC civil penalty authority for fining first-time privacy offenders, plus rulemaking authority. FTC Chairman Joe Simons repeatedly has requested those authorities and jurisdiction over nonprofits and common carriers. Sen. Brian Schatz, D-Hawaii, another original working group member, called first-fining and rulemaking authority “mandatory” in a federal privacy bill.
The FTC should “have very strong enforcement powers,” Wicker said, without committing specifically to civil penalty authority. The object is to include "strong" protections that merit setting a national, pre-emptive standard, Wicker said. Nothing is “off the table” until the final product takes shape, Moran said. There’s no value in picking a fight on any one issue because it’s all part of the overarching package, he said.
Working group members are also collaborating with the Senate Judiciary Committee, said Blumenthal. FTC authority is something Judiciary’s tech task force (see 1907250049) is discussing, said Sen. Marsha Blackburn, R-Tenn. The FTC may need limited rulemaking authority, and civil penalty authority is also worth considering, she said. The task force plans to meet for a second time after lawmakers return from August recess, she said. The task force considered gathering this week, but it decided against a meeting potentially “abbreviated” by recess. She declined to say what groups might participate in the second discussion.
Wicker confirmed he spoke recently on the phone with Facebook CEO Mark Zuckerberg. “It was an off-the-record conversation. Nothing earth-shattering,” he told reporters. Sens. Gary Peters, D-Mich., and Martha McSally, R-Ariz., introduced a bipartisan bill Tuesday that would require data brokers to register annually with the FTC for acquisition, use and protection of brokered personal data.