SENATE DEMOCRATS PROPOSE DATA PRIVACY PRINCIPLES, LEGISLATION
December 6, 2019
Earlier this month U.S. Senators Maria Cantwell (D-WA), Patty Murray (D-WA), Dianne Feinstein (D-CA), and Sherrod Brown (D-OH) published a policy memo entitled “Privacy and Data Protection Framework” to describe their goals for comprehensive data protection legislation. The memo asserts that existing laws have not kept up with technology and therefore, “a comprehensive federal privacy and data security law is essential to hold institutions accountable, restore consumer trust, and protect our privacy.” Their principles were broadly framed:
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Establish Data Safeguards
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Collection of data must be minimized, be tailored to its authorized use
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Harmful, deceptive, and abusive collection and use must be prohibited
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Clear rules must be established to limit data sharing with service providers and third parties except as authorized by consumers
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Provide greater accountability and higher standards for security
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Invigorate Competition
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Consumers must have the ability to prevent their data from being commingled across separate businesses within an enterprise
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Data should be portable from company to company
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Strengthen Consumer Rights
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Consumers must have rights to know, access, delete, correct, and restrict records
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Algorithms must be nondiscriminatory
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Impose Real Accountability
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Companies should bear the burden of protecting privacy not consumers
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Federal regulators should be given new enforcement powers and penalties
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State and private lawsuits to enforce rights should be permitted
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On November 26, 2019, Senator Cantwell introduced a comprehensive bill, the Consumer Online Privacy Rights Act (COPRA), to implement these principles. COPRA would, among other changes, provide for private lawsuits to enforce rights, expand sensitive personal information to include facial recognition, geolocation, and other biometric data, require data portability, and create a new enforcement office within the Federal Trade Commission (FTC). Hearings on the bill should take place in the coming weeks.
COPRA does not currently enjoy bipartisan support but senators of both parties continue to discuss how to move forward with data privacy legislation. A significant policy disagreement yet to be resolved is whether national legislation should preempt states from passing their own data privacy laws – most notably as California has done with the California Consumer Privacy Act (CCPA, taking effect January 1, 2020) – or whether states should be able to write consumer protections that go above and beyond federal standards.
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com or 202-659-6622); Drew Derco (dderco@eckertseamans.com or 202-659-6665).
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