A Group of U.S. Senators Introduce the SAFE DATA Act

On September 17, 2020, Republican Senators Roger Wicker, John Thune, Deb Fischer, and Marsha Blackburn, introduced the Setting an American Framework to Ensure Data Access, Transparency, and Accountability (SAFE DATA) Act.  The Act is an updated version of the United States Consumer Data Privacy Act originally introduced in the November of 2019.

The SAFE DATA Act would:

• Require businesses to allow consumers to access, correct, delete, or port their data;
• Prohibit businesses from processing or transferring consumers’ sensitive data without their consent;
• Prohibit businesses from denying consumers products or services for exercising their privacy rights;
• Minimize the amount of consumer data businesses can collect, process, and retain;
• Limit secondary uses of consumer data without their consent;
• Establish uniform data protections across the country enforced by the Federal Trade Commission (FTC) and state attorneys general;
• Require businesses to disclose a privacy policy to consumers detailing their data collection, processing, and transfer activities, and notify consumers of any material changes to those activities;
• Require businesses to conduct privacy impact assessments of data processing activities that may present a heightened risk of harm to consumers;
• Require businesses to secure consumers’ data and maintain internal controls and reporting structures to assess data privacy risks to consumers; and
• Require online platforms to be transparent about their use of secret algorithms.
• Authorize the FTC to develop new rules to expand categories of sensitive data;
• Require the FTC to share any information with the appropriate Executive or State agency if it obtains information that a business has processed or transferred consumer data in a way that violates Federal anti-discrimination laws;
• Require the FTC to maintain a data broker registry;
• Expand the FTC’s authority to oversee the data use practices of common carriers and nonprofit organizations; and
• Establish the FTC’s authority to obtain monetary remedies for consumers.
• Preempt state laws on data privacy and data security.
• Not provide for a private right action.

In addition, Senator Wicker, the Chairman of the Senate Committee on Commerce, Science, and Transportation, will convene a hearing titled, “Revisiting the Need for Federal Data Privacy Legislation,” on Wednesday, September 23, 2020.  The hearing will examine the current state of consumer data privacy and legislative efforts to provide baseline data protections in the United States, lessons learned from the implementation of the GDPR and state privacy laws in the U.S., as well as how the COVID-19 pandemic has affected data privacy.

Given the continuing disagreement among the U.S. lawmakers on the key issues of preemption and private right of action in the privacy legislation, a likely Supreme Court nomination and hearing, as well as the upcoming November elections, it is highly unlikely that a major federal privacy bill will be passed before the end of this year.  However, the new proposal, along with other recent privacy bills and the forthcoming hearing, is a reminder that privacy and data protection remain on top of the federal legislators’ minds and we should expect a robust debate of these issues in the near future.

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