Washington Legislators Are Nearing a Decision on the State Privacy Act

With the legislative session closing in just over a week on March 12, 2020, the Washington legislators are nearing a decision on the State Privacy Act.

Last year, the legislators failed to pass the bill when they could not reach a compromise before a legislative deadline on a number of issues including a private right of action and regulation of facial recognition.  On January 13, 2020, the state lawmakers introduced an updated version of the Privacy Act.  The Senate bill did not provide for a private right of action.  Rather, the State Attorney General had the exclusive authority to enforce the Act and impose civil penalties.  At the time the bill was introduced, State Senator Reuven Carlyle, one of the bill’s sponsors, stated that there was now an “overwhelming consensus” on some components of the bill.

Apparently, the lack of a private right of action was not one of these components.  Once the Senate approved the bill on February 14, it run into substantial resistance from privacy advocates in the State House.  On February 28, the House Committee on Innovation, Technology & Economic Development (ITED) voted to advance the Privacy Act subject to a number of amendments.  Most notably, the amended bill removed the provision giving the Attorney General exclusive enforcement authority and provided that violations of the Act are enforceable under the Washington Consumer Protection Act, which in turn provides for a private right of action by the consumers, including recovery of attorney’s fees.  See Revised Code of Wash. § 19.86.090.   In addition, the amended Act modified the jurisdictional scope threshold and the data minimization responsibilities, among other changes. The Washington Attorney General came out if favor of the House version, asserting that it “gives consumers a voice in asserting their rights.”  On March 2, the bill passed the House Appropriations Committee with the amendments approved by the ITED.

The existence of a private right of action is a major sticking point in crafting a privacy legislation in the United States.   Whereas the consumer groups argue that the ability to sue companies for violating privacy laws gives consumers a say in asserting their rights, businesses are anxious about defending a slew of consumer class actions over new and complex privacy regulations.  A decision on the private right of action in Washington will be an important step in this ongoing debate and will likely impact a debate over a future federal law as well.

As of March 3, the bill was referred to the Rules Committee where its members will review the bill and decide whether to move it forward.  Will the Privacy Act survive or fail once again?  Stay tuned.

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