A New Bill Introduced in Congress Would Establish a Federal Data Protection Agency in the United States

On February 12, 2020, New York Senator Kirsten Gillibrand introduced a new federal bill, titled
“Data Protection Act of 2020,” that proposes to establish a federal data protection agency in the United Sates with broad rulemaking and enforcement authority.  A summary of the proposed legislation was published by the Senator in her Medium blog post.

The proposed agency will have all powers and duties under the various federal privacy laws (including COPPA, CAN-SPAM, FCRA, GLBA, and HITECH) to prescribe rules, issue guidelines, and to conduct studies and issue reports mandated by such laws, that are currently vested in the Federal Trade Commission.

The proposed agency would be tasked with enforcing privacy statutes and rules around data protection and would use a broad range of tools at its disposal, including civil penalties, injunctive relief, and equitable remedies.  The agency would take consumer complaints, conduct investigations, and inform the public on data protection matters.  The agency would also promote data protection and privacy innovation across sectors, develop and provide resources such as Privacy Enhancing Technologies that minimize or eliminate the collection of personal data, and ensure fair competition within the digital marketplace.  In addition, the agency would advise Congress on emerging technology and privacy issues and represent the United States in international forums regarding data privacy and inform future treaty agreements regarding data.

This is not the first time that the federal legislators propose to establish an independent federal privacy agency.  In November of 2019, California Congresswomen Anna Eshoo and Zoe Lofgren, who represent Silicone Valley-area districts, introduced a sweeping federal privacy bill titled “Online Privacy Act” (H.R. 4978) which proposed to establish a federal Digital Privacy Agency which would enforce users’ privacy rights and ensure compliance with the law.

Recently, the FTC chairman Joseph Simons opined that the time has come for Congress to consider passing a federal privacy bill, but that it would be a “huge mistake” to establish a new privacy regulatory agency given the FTC’s experience and expertise with enforcing privacy over the years.  Rather, he urged the Congress to update the FTC Act and clarify that the FTC can recover monetary damages for privacy-related violations.

There have been a number of federal privacy laws introduced in Congress over the last year.  We will continue to monitor developments in the proposed federal privacy legislation and report them in our blog.

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