Schatz Pushes Privacy Group to Take Up His Proposals; Thune to Join Talks
Sen. Brian Schatz, D-Hawaii, is pushing the Senate Commerce Committee’s bipartisan privacy working group (see 1904040073) to include elements of his bill (see 1812120036) in its proposal, according to lobbyists. They said that’s one aspect complicating long-awaited negotiations among Chairman Roger Wicker, R-Miss., Sen. Jerry Moran, R-Kan., Sen. Richard Blumenthal, D-Conn., and Schatz.
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The privacy group will expand to five, with Senate Majority Whip John Thune, R-S.D., joining, said an informed person. Thune has a good working relationship with Schatz; they respectively serve as chairman and ranking member on the Senate Communications Subcommittee. Thune initiated the committee’s privacy effort in 2018 as chairman. The committee will hear from consumer groups and an EU data protection enforcer Wednesday (see 1904240023). The first two hearings included almost all industry witnesses.
Schatz is pressing to include a version of his fiduciary duties concept, one lobbyist said. He's a “pragmatic” negotiator, so he could be maneuvering to drive a bargain on enforcement aspects of the proposal, another lobbyist said. Another described Schatz believing his legislative approach is best. Offices for all four original members of the working group didn’t comment. Lobbyists and stakeholders agreed the group has been tight-lipped ever since Moran made public remarks about members advancing negotiations (see 1903260068).
Any delay in releasing a privacy proposal hopefully means Democrats aren’t compromising, said Public Citizen Digital Rights Advocate Kristen Strader. It seems the two sides are working out differences, she said, noting the complications of striking a bipartisan deal. Public Citizen supports certain aspects of Schatz’s legislation, which Strader said shifts data protection burdens from consumers to corporations.
Chances of passing a bill remain the same regardless of whether the group releases a discussion draft before or after Memorial Day, NetChoice Vice President Carl Szabo said. Progressives pushing for stronger privacy protections don’t perceive as much incentive to pass a federal law because they see the California Consumer Privacy Act as a victory and baseline, he said: “They’re happy to let the clock run out.” Schatz previously said state privacy laws bolster Democrats’ bargaining position, and he has no problem with a state patchwork if the federal privacy package isn't a progressive law like California’s. If and when the CCPA is declared “unconstitutional,” Szabo argued, that side will regret not having a national standard in place.
Pre-emption remains a sticking point, lobbyists said. Group members are eager to release a bill, but they’re not particularly close on text, one lobbyist said. With Memorial Day, Fourth of July and August coming and the 2020 election “looming, if they don’t get text out there, the timeline will get more and more difficult” before the CCPA’s January 2020 deadline, the expert said.
Congress’ privacy effort has been far more “transparent, deliberative, open and accommodating” than the process for passing the CCPA or the EU general data protection regulation, said American Enterprise Institute Visiting Scholar Roslyn Layton. Stakeholders most affected by both regulations, particularly small businesses and startups, were excluded from rulemaking processes in the other two instances, she said.
Strader contends consumer advocates have had limited access to the Senate Commerce Committee, citing the previous two privacy hearings with almost all industry witnesses. Consumer groups deserve a chance to respond, she said, arguing industry has consistently benefited from a “poorly regulated” market.