Congress has long tried but failed to adopt comprehensive data privacy legislation. We are on the cusp of seeing such a law be passed. If it does, every aspect of how a business or other organization collects, retains, and uses data will need to be revisited. This article summarizes the changes that may be coming.
In July, in a rare show of bipartisan cooperation, Congress recently released a discussion draft of a comprehensive data privacy bill, the American Data Privacy and Protection Act (“ADPPA” or the “Bill”). And on July 20, the House Committee on Energy & Commerce held an open markup session, which concluded in an affirmative vote (53-2) for an amended version of the Bill to make ist way to the full House.
The Bill addresses long-standing concerns, including data collection minimization, civil rights protections, and data ownership. It also would prohibit behavioral advertising to minors, on the basis of “sensitive” information, and place other restrictions on online advertising and marketing that will have a major impact on how online advertising operates in the future. Crucially, the Bill also reflects a compromise that had eluded lawmakers: It contains both a private right of action, long sought by privacy and consumer advocates, and a preemption provision, long sought by industry. Passage is still far from certain. As a data privacy commentator noted: “It’s always a good bet that broad privacy legislation will fail to pass.” Nevertheless, the release of a bipartisan discussion draft signals that “we are far, far closer than we have ever been” to passage. Even more notably, the House Committee on Energy & Commerce voted to advance the legislation by an overwhelming 53-2 margin.
Yet significant obstacles remain. The legislation has yet to receive the blessing of Senator Maria Cantwell, the Chair of the Senate Committee on Commerce, Science, and Transportation, who has cited “major enforcement holes” in the Bill.5 Given Senator Cantwell’s holdout and Senator Schumer’s reported unwillingness to bring the Bill up in the Senate without Cantwell’s support, the Bill’s future remains uncertain.
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