A version of the Washington Privacy Act amended by House of Representatives lawmakers last week to include a limited private right of action received pushback from industry representatives Thursday but was ultimately passed by the House Appropriations Committee in a 19–14 vote.
Of the 12 witnesses who testified during the committee’s public hearing, two spoke in favor of the newly amended WPA. Those opposed said the addition of a private right of action — with remedies limited to injunctive relief and “reasonable attorneys’ fees and costs” awarded to plaintiffs — substantially changes the version of the bill that passed the Senate by a 48–1 vote in early March and without public input. The House Civil Rights & Judiciary Committee amended the bill March 26 with a striking amendment that included adding the private right of action.
“The (Civil Rights & Judiciary) committee made significant policy changes to the bill with zero public input. The bill as it passed the committee introduces new and vague terms untested in any legislation around the country,” Internet Association Northwest Director of State Government Affairs Rose Feliciano said. “It is concerning that the House will pass a significant piece of legislation with no public testimony and no public input. This is a troubling precedent.”
The private right of action, according to Washington Technology Industry Association Vice President of Government Affairs Molly Jones, “would subject businesses of all types to frivolous lawsuits without creating additional protections for consumers.”
While industry voices claim they don’t want to be subject to excessive liability, Common Sense Media Director of State Advocacy Joseph Jerome, CIPP/US, said, “Let’s be honest for a moment … the reality we’re seeing is they want to avoid liability as much as possible.”
Now in its third legislative cycle, Jerome said the WPA “has had a long and winding road” resulting in a compromise that will “improve how companies will protect our most sensitive information” and is “better than the status quo.”
Included in the amended WPA is the expiration of a right to cure provision one year after the bill’s effective date, which Consumer Reports Policy Analyst Maureen Mahoney said is important, “because otherwise, the attorney general could waste resources building cases that go nowhere.”
But TechNet Executive Director for Washington and the Northwest Samantha Kersul argued the right to cure would achieve the same goal as a private right of action with injunctive relief “at a much lower cost to both consumers and businesses in a much more expedited fashion without opening the floodgates for class action liabilities.” She added, “there should be no expiration date on a consumer’s ability to get a timely remedy from a company.”
According to the bill’s fiscal note, 3.5 full-time equivalents would be allocated to the Office of the Attorney General — which would receive $1.2 million in 2021 through 2023 and $1.09 million in 2023 through 2027 — for enforcement. The office’s Consumer Protection Division anticipates three full investigations per fiscal year, the document states.
American Civil Liberties Union of Washington Volunteer Attorney William Block called that “grossly inadequate to address the scope of the problem,” adding the private right of action is “illusory.”
“This bill needs a lot of amendments to be truly protective,” he said. “Unless you are going to increase the attorney general’s funding, the bill must create a true private right of action for damages or it will be completely ineffective.”
According to the Washington State Legislature calendar, the House would have until April 11 to pass the bill, while the last day of the regular session is April 25.
Photo by Zhifei Zhou on Unsplash
