The Washington state House of Representatives failed to advance the Washington Privacy Act Sunday, its last day to pass the bill this session, but its fate is not yet set in stone.

While April 11 was the deadline for non-fiscal bills to pass out of the House, sources indicate the chamber is still negotiating a compromise, and a representative of sponsor State Sen. Reuven Carlyle, D-Wash., said he believes “the bill remains alive through the end of the legislative session.” Carlyle declined to provide further details.

After the deadline, the chamber can consider “initiatives, alternatives to initiatives, budgets and matters necessary to implement budgets, differences between the houses, and matters incident to the interim and closing of the session.”

April 25 is the last day of the 2021 legislative session.

If the WPA does not pass the House, this would be the third year in a row a version of the legislation — which aims to give consumers data rights, including the right to access, correct or delete data — has failed. Future of Privacy Forum Policy Counsel Polly Sanderson said that would be a “step backward for privacy legislation with implications that could reverberate across the country.

“Washington is the center of the privacy legislative debate right now,” she said. “What we see in Washington state is a microcosm that we might see playing out at a later date at the federal level.”

The WPA was on the House calendar Sunday but was not called for a vote. Lawmakers had proposed 25 amendments, among them a proposal by Rep. Shelley Kloba, D-Wash., that would implement portions of the People’s Privacy Act, including adding a full private right of action with $10,000 liquidated damages per violation. Kloba sponsored the competing legislation, which has not seen movement since Feb. 1 when it was before the House Civil Rights & Judiciary Committee.

Hintze Law Partner Mike Hintze, CIPP/C, CIPP/E, CIPP/G, CIPP/US, CIPM, CIPT, FIP, said a full private right of action would be “nothing more than a guarantee for class-action lawsuits against virtually any company the plaintiffs’ bar chooses to target.”

“A huge gift to the trial lawyers, but it would not have meaningfully improved privacy protections for consumers over the reasonable, balanced, and achievable standards that were in the version passed by the Senate,” he said.

The Senate passed a version of the WPA by a 48–1 vote in early March, but the bill was subsequently amended by the House Civil Rights & Judiciary Committee with a striking amendment that included the addition of a limited private right of action — with remedies limited to injunctive relief and “reasonable attorneys’ fees and costs” awarded to plaintiffs.

The chambers would have to reconcile differences, which is where past iterations have stalled. In 2020, a version of the bill passed through the Senate was amended by the House — including the addition of a private right of action — and, ultimately, lawmakers failed to reach a consensus on enforcement.

“I don’t really have high hopes. Because even if the House considers it, I imagine that this is going to be a type of deja vu scenario. Ultimately, the issue of enforcement killed the bill last year. I don’t see that changing this year unless compromise is possible,” Sanderson said, adding this year’s bill faces additional areas of debate with the House committee’s amendments.

Through its three iterations, the WPA has become “arguably the strongest viable option for privacy legislation relative to bills in other states,” Sanderson said, noting its potential failure could influence other states and the broader legislative privacy discussion.

“It just shows we may be experiencing a leveling-down of privacy protections in other states if this bill doesn’t pass,” she said. “(WPA) is a really big door opener for privacy advocates. So, from a broader perspective, I feel the failure of this bill for the third time in a row could have the potential to lower standards for privacy legislation across the country, with the potential to weaken the bargaining hands for privacy advocates at the federal level.”  

Common Sense Media Multistate Policy Director Joseph Jerome, CIPP/US, said he is optimistic the WPA will see positive movement in the coming days, but “at the 10,000-foot level” the discussion certainly highlights the issue of enforcement.

“We’re seeing this in other states, you’ve got lawmakers repeatedly saying they are really interested in strong privacy protections, but when the rubber meets the road, they don’t seem to be willing to do more than punt a bunch of stuff to the attorney general,” he said. “I understand the business community wants that, but you’re seeing in Washington that just doesn’t work. For three years now, they’ve been fighting over enforcement.”

Photo by Charles Lenhart on Unsplash