Even though the Senate Commerce Chair still opposes ADPPA, a revised version gets marked up in House subcommittee.
The House Commerce Committee started marking up a revised version of the “American Data Privacy and Protection Act” (H.R. 8152) even though Senator Maria Cantwell (D-WA) has repeatedly said she opposes the bill in its current form. Cantwell’s position as the chair of the committee of jurisdiction in the Senate means she could likely single handedly block the bill. And yet, Democrats and Republicans on the House Commerce Committee are closer than they have been in the last decade to getting a data privacy bill through the House. A private right of action, preemption, loyalty programs, and other issues remain outstanding.
The revised ADPPA makes the bill more industry friendly in a number of places but also changes the bill in some ways that privacy and civil liberties advocates will like. Nonetheless, today, we will cover the markup itself and the revised and expanded bill text tomorrow.
However, an outstanding change that has still not been folded into the package is the restoration of the Federal Trade Commission’s (FTC) historical Section 13(b) authority the Supreme Court of the United States struck down in AMG Capital. This may be a bargaining tactic to get Cantwell onboard given that her committee recently marked up a bill to give the agency back these long used powers.
And, speaking of Cantwell, she continues to make known her reservations about ADPPA, which she claims Senate Majority Leader Chuck Schumer (D-NY) shares. If Cantwell and Schumer both indeed oppose the bill as currently written, it has dim chances in the Senate. Moreover, she continues to produce new drafts of her “Consumer Online Privacy Rights Act“ (COPRA) (S.3195) first introduced in 2019 and subsequently revised lightly in 2021. However, some of the provisions are puzzling some stakeholders that one might think of as allies in the fight to toughen the enforcement language. One such stakeholder is claimingCantwell wants to sink all data privacy legislation for reasons only she knows perhaps because of ego or allegiance to home state tech giants Microsoft and Amazon.
Moreover, it is being alleged that Cantwell refused to allow consideration of a compromise bill agreed to by Senators Richard Blumenthal (D-CT) and Marsha Blackburn (R-TN) earlier this year even though Ranking Member Roger Wicker (R-MS) was signaling his support for this bill.
It also bears mention that the FTC may be proceeding with a Magnuson-Moss rulemaking for the first time in decades “to curb lax security practices, limit privacy abuses, and ensure that algorithmic decision-making does not result in unlawful discrimination” with an advanced notice of proposed rulemaking (ANPRM) being issued in the near future. Of course, this more time-consuming rulemaking procedure in Section 18 of the FTC Act (Magnuson-Moss) has been rarely used since its inception over four decades ago, and Chair Lina Khan would face significant hurdles in getting regulations promulgated. Since the agency is using an existing grant of authority to draft rules not reliant on ADPPA (assuming it is enacted in something resembling its current state), the question is begged whether the agency may do so legally. Inevitably any such rulemaking would be challenged in court on procedural and substantive grounds, and Republican judges are showing an increasing inclination to discard long settled law. It is possible the agency loses in court.