Congress Holds A Hearing on U.S. Federal Privacy Law

On September 23, 2020, Senate Committee on Commerce, Science, and Transportation held a hearing titled “Revisiting the Need for Federal Data Privacy Legislation.”  The hearing examined 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.

The witnesses included four former Federal Trade Commissioners and California Attorney General Xavier Becerra.  The witnesses urged Congress to enact a federal privacy legislation, although they disagreed on some of its key aspects.  For example, Attorney General Becerra, whose state has already enacted a robust comprehensive privacy law, argued that a federal law should establish a “floor, not a “ceiling,” on the applicable privacy standards.  Former FTC Commissioners Jon Leibowitz and Maureen Ohlhausen, on the other hand, spoke in favor of federal preemption, asserting that a single national standard could better serve consumers and would be stronger and more comprehensive than existing regulator frameworks, such as the GDPR and CCPA.

Given the continuing disagreement among the U.S. lawmakers on the key issues of preemption and private right of action in the privacy legislation, an upcoming Supreme Court nomination hearing, and the November elections, it is highly unlikely that a major federal privacy bill will be passed before the end of this year.  However, several recent federal privacy bill proposals and the Congressional hearings are a reminder that privacy and data protection remain on top of the federal legislators’ minds and we will see a robust debate of these issues in the near future.

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