Update on the Federal Privacy Law Negotiations

The latest media report about the negotiations in the Senate for a new federal privacy bill has been released by TheHill. Senator Wicker offered Labor Day as the new deadline for draft legislation from the key members of the Senate Commerce Committee involved in the negotiations.

The monthly deadline has already slipped multiple times. The initial reports from the committee set the expectations for delivery of the text of a bill to more than six months ago. Yet, as the negotiations have dragged on, the goalpost has been continually moved back. The larger working group on privacy that started the year has been replaced, according to the media reports, by direct negotiations between the Republican and Democrat leaders of the Commerce Committee. In July, the expectation was set that it would be ready in a few weeks.

There are three Senate committees that are working on privacy bills, including the Senate Judiciary Committee and the Banking Committee. But it is the work of the Senate Commerce Committee, headed by Wicker and Democratic Senator Cantwell, that has been most discussed.

Negotiations between Wicker and Cantwell are expected to take place throughout the month behind closed doors, given Wicker’s instruction to members of the working group in the past not to negotiate through the press.

The House Energy and Commerce Committee has also been quietly discussing the substance of a new federal privacy law. However, according to the report in TheHill, a substantial proposal has not been developed from the meetings between the Republicans and the Democrats on the committee.

The discussions between the Republicans and Democrats on a comprehensive privacy bill are playing out ahead of the deadlines for implementation and enforcement of the California Consumer Privacy Act (CCPA). January 1st is the effective date, at which time businesses will be required to comply with the law. Enforcement is starting on July 1st, unless the final CCPA regulations written by the California Attorney General are published before January 1st in which case it would be six months after their date of publication.

There are a number of different issues at play here, including a private right of action, federal preemption, and the appropriate government body for enforcement. Senator Wicker’s public comments have definitely taken a private right of action off the table, while the Democrats in the U.S. House of Representatives have strongly indicated that they would not consider federal preemption that weakens the protections of the CCPA. As a result, it is unclear at the moment whether there really has been any progress or not in the discussions over the last six months.

There have been more than two dozen privacy bills introduced or drafted by members of congress, businesses, industry organizations, and consumer groups over the last year. However, with the 2020 election approaching and the CCPA deadlines right around the corner, the window for action appears to be closing rapidly.