House Renews Consideration of Privacy Legislation | Citizens Against Government Waste

House Renews Consideration of Privacy Legislation

The WasteWatcher

After Congress considered but failed to enact a comprehensive nationwide privacy framework during the 117th Congress, the House Energy and Commerce Subcommittee on Innovation, Data and Commerce held its first hearing on privacy for the 118th Congress.  The hearing, “Promoting U.S. Innovation and Individual Liberty through a National Standard for Data Privacy,” was held on March 1, 2023. 

In the 117th Congress, H.R. 8152, the American Data Privacy and Protection Act (ADPPA), was ordered to be reported by the Energy and Commerce Committee by a vote of 53-2 on July 20, 2022, but was not reported to the House until December 30, 2022.  It was not brought to the floor of the House, and the Senate did not have any privacy bill reported out of a committee.  The subcommittee hearing is the beginning of yet another attempt to provide consumers and taxpayers with a single set of rules and guidance for privacy that should be uniform across the entire country and provide certainty about how data will be protected.

The Council for Citizens Against Government Waste (CCAGW) sent a letter to the Energy and Commerce Committee on July 19, 2022, noting that many of the points Citizens Against Government Waste (CAGW) has promoted as part of a comprehensive data privacy regime through comments to the National Telecommunications and Information Administration were included in the legislative package.  CAGW also listed privacy as one of the top issues for Congress to focus on in the recently published Critical Waste Issues for the 118th Congress.  

CCAGW’s letter cited several problems with ADPPA that the 118th Congress should resolve when data privacy legislation is introduced, including exemptions for several existing state laws, private rights of action, and expansion of the Federal Trade Commission’s authority.  The FTC provisions are particularly concerning after the agency abandoned the longstanding consumer welfare standard and abject disregard for the economic impact of its proceedings on privacy, non-disclosure agreements, and merger applications.  Committees that consider privacy legislation should be wary about an agency that is already trying to supersede Congress by developing its own set of privacy rules and regulations that many believe go well beyond its authorized scope of mission and would have major economic impacts across every sector of the economy, raising the major questions issue that were spotlighted in the Supreme Court’s decision in West Virginia v. EPA.  As CCAGW noted in its July 19, 2022, letter, the inclusion of an expansive private right of action authority “will only lead to a more litigious society.”

While members of Congress seem intent on regulating large technology companies, data privacy impacts every business, from large hospitals, insurance companies, social media companies, and online search platform providers, to local barbershops, clothing boutiques, farm supply stores, and corner grocery stores.

States across the country have either enacted or are considering enacting their own separate comprehensive data privacy laws, creating uncertainty for taxpayers as to which state’s laws should apply to their information, and businesses as to which laws they need to obey to avoid potential violations.  The March 1, 2023, subcommittee hearing provided a starting point to move forward to the certainty that a national legislative solution will provide.  The legislation must be as uniform as possible, meaning the committee should reconsider providing exceptions to existing state laws, removing the private right of action, and restricting the Federal Trade Commission from moving forward on its Advanced Notice of Proposed Rulemaking to create its own national privacy framework outside of its statutory authority.

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