Biden, Rodgers, Pallone Look for Privacy Collaboration in 2023

Sponsors will move to reintroduce bipartisan legislation in 2023, though there’s no firm timeline for filing the American Data Privacy and Protection Act (HR-8152), House Commerce Committee ranking member Frank Pallone, D-N.J., told us. Some experts said the bill could have a better chance of passage with House Speaker Kevin McCarthy, R-Calif., now setting the agenda.

“When we would introduce it, we’ll see,” said Pallone. “At this point, I’m hopeful there would be movement because it is bipartisan.” Asked if there’s a firm timeline, he said, “Not at this time.” House Republicans’ first priority was electing a speaker, said Rep. Gus Bilirakis, R-Fla., top Republican on the House Consumer Protection Subcommittee in 2022. He introduced the ADPPA with Pallone, then-House Commerce Committee ranking member Rodgers and then-House Consumer Protection Subcommittee Chair Jan Schakowsky, D-Ill. Rodgers was named chair Tuesday. Now that McCarthy has been installed, Bilirakis said he would get together with Schakowsky. “I haven’t been appointed as the subcommittee chair yet, and you know, that’s up to Cathy,” said Bilirakis: But getting together on bipartisan reintroduction of the bill “would be a priority for me.” Offices for Rodgers and McCarthy didn’t comment. The office for Sen. Roger Wicker, R-Miss., who supported the ADPPA in 2022 and is expected to take over as top Republican on the Senate Armed Services Committee, didn’t comment.

Congress needs to pass bipartisan legislation to “hold Big Tech accountable,” Biden said Wednesday in a Wall Street Journal editorial. He called for federal privacy protections, greater platform responsibility for social media algorithms and fair competition rules to keep dominant companies in check. On privacy, targeted advertising should be limited in general and banned altogether for children, he said. The ADPPA would ban targeted advertising for minors and set limits for targeted ads built using sensitive data.

The White House should work with Congress to enact federal privacy standards rather than addressing harms unilaterally through executive action, said Rodgers in a statement responding to Biden’s comments. She noted the ADPPA’s bipartisan, bicameral progress last year: “We look forward to President Biden working with us to clear any remaining obstacles standing in the way of a national privacy standard being signed into law.”

Both she and Biden called for updates to Communications Decency Act Section 230. Allowing more free speech and cracking down on illegal drug sales are issues that can be addressed through Section 230 reform, Rodgers said. Section 230 updates are needed to ensure Big Tech companies “take responsibility for the content they spread and the algorithms they use,” said Biden.

Former House Speaker Nancy Pelosi, D-Calif., opposed the ADPPA because it would preempt California law (see 2209010066), but all House Commerce Committee Republicans supported passage, noted WilmerHale’s Kirk Nahra. McCarthy hasn’t indicated opposition and doesn’t seem inclined to go out of his way to preserve a California law that weighs heavily in favor of consumers, he said. There’s potentially “a small window for a bill,” perhaps between March and November, where the House “can get its overall act together and potentially act before the presidential campaign starts in earnest,” he said. Final passage should be a coin flip, but each new state law puts more pressure on Congress to act and adds incentive for industry to get behind a national standard, he said.

Of all the issues facing the House, privacy might be the most bipartisan issue, said Peter Swire, who teaches about privacy policy at Georgia Tech. He noted the 53-2 passage out of the House Commerce Committee last year (see 2207200061). Multiple experts concluded the ADPPA is “more privacy-protective than current California law,” he said.

“It is certainly possible that this bill could pass the House, but I think a lot of bills are going to pass the House that don’t get through the Senate in the next two years,” said University of Minnesota law professor Bill McGeveran, noting opposition from Senate Commerce Committee Chair Maria Cantwell, D-Wash. Wicker told us in December: “You’ve got to have four corners,” in reference to the four party leaders on the Commerce Committees in the Senate and the House. Stakeholders at large would “generally” go along with the “other three corners," he said.

There’s both bipartisan support for and bipartisan opposition to the ADPPA, said McGeveran. “Using the partisan calculus to figure out what’s going to happen doesn’t work well with this particular topic,” he said. He agreed McCarthy seems more sympathetic than Pelosi to the bill, but California’s House delegation remains a key hurdle.