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Federal privacy bill trumps California’s law, advocates say
Privacy and civil rights advocates are pushing back on criticisms from California officials that a federal privacy bill would weaken protections in the state, arguing that the bipartisan measure recently unveiled in Washington is even stronger than California’s landmark law.
California Democrats for years have warned congressional colleagues that any attempts to dilute or override the California Consumer Privacy Act would meet stiff opposition.
“California’s bill is the best. Why would we want to preempt it?” Rep. Jackie Speier (D-Calif.) told me in February 2019. How a federal privacy law would intersect with a growing number of state laws has been a major sticking point for talks in Congress.
Now as lawmakers consider a landmark privacy bill — the American Data Privacy and Protection Act — that would preempt conflicting state rules, the issue is again gaining attention.
As Bloomberg Government reported, the California Privacy Protection Agency recently expressed concerns to House Speaker Nancy Pelosi (D-Calif.) that the bill “would hurt Californians” by limiting state legislators and regulators from boosting protections. The issue has also been raised by California lawmakers and more broadly by top House Democrats.
But those fears aren’t shared by several D.C.-based privacy advocates.
A memo comparing the measures prepared by three prominent nonprofits and shared with The Technology 202 argues that the federal bill’s consumer protections are equal to or better than the California law in a vast majority of areas.
Alan Butler, executive director of the privacy group EPIC, said that the federal bill (ADPPA) would be more effective in minimizing how much data companies can collect from consumers, has stronger guardrails around sensitive data and, notably, contains a section on civil rights.
“ADPPA is basically much clearer on the obligations of companies to limit the extent of their processing, the collection … and transfer of data to a specific list of permissible purposes,” he said.
David Brody, managing attorney for the Lawyers' Committee for Civil Rights Under Law, said the bill also gives consumers a more robust mechanism to bring lawsuits against violators, whereas the so-called private right of action under the California law is limited to data breaches.
“One of the biggest and most obvious reasons why the federal bill is better is because it actually has a private right of action,” he said.
The bill also covers a “broader” array of entities and is “more protective” when it comes to children’s and teens’ data, according to the memo, which EPIC and the Lawyers’ Committee compiled along with the Center for Democracy and Technology. (CDT receives funding from tech companies including Google, Apple and Twitter.)
Still, questions about the legislation’s language around state preemption and private right of action are expected to be a focus next week as the House Energy & Commerce Committee looks to mark up and advance the bill to the chamber floor.
It would mark the first time a so-called comprehensive consumer privacy bill has made it out of committee on Capitol Hill, a historic feat. But it faces major hurdles in the Senate.
Senate Commerce Chair Maria Cantwell (D-Wash.) has said the enforcement mechanism of her colleagues’ bill is too weak.
One key aspect of California’s law could prove contentious on Capitol Hill: It contains language blocking state legislators from weakening its protections.
While ADPPA may be stronger than California’s law in the eyes of some privacy advocates, members of the California delegation may still be reluctant to pass a federal law that could be watered down by another Congress, unlike the California Consumer Privacy Act.
Another is that by overriding California’s law, it could severely weaken the power of the state’s newly created regulator, the California Privacy Protection Agency. Butler said he hopes it’s an issue lawmakers on Capitol Hill can address as they debate their bill.
“This is an issue that I think it's really important to resolve in ADPPA, but I don't think it's an issue that’s … a fundamental structural flaw,” he said.
Our top tabs
Justice Department is preparing to sue Google despite company’s offer to split ad business
The Justice Department, which has been investigating Google’s ad practices since 2019, could file an antitrust lawsuit in the coming weeks, Bloomberg’s Leah Nylen reports. Google proposed splitting its ads business into a separate company under Alphabet in an attempt to fend off the lawsuit, the Wall Street Journal reported last week.
“We have been engaging constructively with regulators to address their concerns,” Google spokesperson Peter Schottenfels told Bloomberg. “As we’ve said before, we have no plans to sell or exit this business, and we’re deeply committed to providing value to a wide array of publisher and advertiser partners in a highly competitive sector.”
Assistant Attorney General for Antitrust Jonathan Kanter’s work for Google opponents means he may be recused from the matter, leaving it to his deputy, Doha Mekki. Mekki has signaled skepticism of settling with firms accused of antitrust violations. “You’re going to see a lot more litigation from the antitrust division,” Mekki said in April. “The division’s position is, we are not planning to take settlements. Settlements suggest compromise.” The Justice Department declined to comment to the Wall Street Journal and Bloomberg.
Two top House Republicans open investigation into TikTok and China
Reps. James Comer (R-Ky.) and Cathy McMorris Rodgers (R-Wash.) asked TikTok chief executive Shou Zi Chew for documents and information about TikTok’s relationship with parent ByteDance and their data practices. The lawmakers are the top Republicans on the House Oversight and Reform Committee and House Energy and Commerce Committee.
The investigation comes as TikTok faces mounting scrutiny about the level of access that engineers and other workers in China have to U.S. user data in the wake of a BuzzFeed News report last month. Top senators have asked the FTC to investigate whether TikTok engaged in deceptive practices.
China-based employees can access U.S. user data after clearing security measures, TikTok recently told nine GOP senators.
TikTok spokesperson Brooke Oberwetter said in a statement, “For two years, we've talked openly about our work to limit access to user data across regions and keep U.S. user data secure.” TikTok looks forward to “meeting with members of Congress to correct the record” on recent reports, Oberwetter said.
Schumer prepares Senate vote on chips funding despite Republican opposition
Senate Majority Leader Charles E. Schumer (D-N.Y.) said the Senate will move to start debate on the China competition bill as soon as Tuesday, John Wagner and Mariana Alfaro report. It comes after Commerce Secretary Gina Raimondo urged lawmakers to quickly pass a measure that would pump $52 billion into the semiconductor industry. She is pushing them to pass it before Congress’s August recess.
Last month, Senate Minority Leader Mitch McConnell (R-Ky.) threatened to withhold Republican support for the competition bill as long as Democrats pursue a broader spending package.
Some Republicans are already signaling their opposition to Schumer’s plan. “We’re not gonna vote on a CHIPS bill as long as the sword of Damocles of reconciliation is hanging out there,” Sen. John Cornyn (R-Texas), one of the bill’s sponsors, told CNBC.
Rant and rave
Facebook will begin testing a feature to allow users to create up to four additional profiles that don't have to include their real name, Bloomberg's Kurt Wagner reports. Writer, digital media strategist and editor Garance Franke-Ruta:
Editor Karissa Bell:
Reporter Scott Nover:
Inside the industry
- Krista Chavez has joined NetChoice as a communications manager. Chavez previously worked at the Mercatus Center at George Mason University.
- Federal Trade Commissioner Noah Phillips, a Republican, speaks at an American Enterprise Institute event on the consumer welfare standard on Monday at 1:30 p.m.
- Patreon chief executive Jack Conte discusses the creator economy at a Washington Post Live event on Monday at 4 p.m.
- The House Judiciary Committee holds a hearing on government access to personal data on Tuesday at 10 a.m.
- The Senate Commerce Committee holds a hearing to consider President Biden’s nomination of Dr. Arati Prabhakar to lead the White House Office of Science and Technology Policy on Wednesday at 10 a.m.
- FCC Commissioner Brendan Carr, a Republican, discusses broadband grants at an American Enterprise Institute event on Thursday at 10 a.m.