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United States Privacy Digest | Notes from the IAPP Editorial Director, September 24, 2021 Related reading: Ohio Lt. Governor Jon Husted discusses the state's privacy bill


Hello, privacy pros!

Parsing through the seemingly constant influx of privacy-related news is no small task, as many of you know. Earlier this week, we heard rumblings from an angry French contingent after the U.S. signed a deal with Australia to supply them with nuclear-powered submarines. This effectively undercut a — gulp — $60 billion deal the French already had in place with the Australians. Unsurprisingly, the French were not pleased. They recalled their ambassadors and, in conjunction with the European Commission, threatened to pull out of talks next week in Pittsburgh around the Trade and Tech Council. This meeting has significant implications for trans-Atlantic trade. 

Does this mean the submarine deal torpedoed a new Privacy Shield agreement? Let's hope not. As of this morning, things are back on track. According to Politico, the commission said the talks were back on. I'm sure that call from President Joe Biden to French President Emmanuel Macron, in which Biden said the U.S. should have told Paris about the deal, helped the matter. 

Domestically, it's nearly impossible to ignore developments involving the Federal Trade Commission at the moment. With Lina Khan at the helm, and the recent nomination of Georgetown's Alvaro Bedoya as commissioner, we'll soon have all five commissioners at the agency for the first time in a while. Notably, the Democrats' proposed budget bill — if passed, and that's a big if — would provide the FTC with $1 billion in funding, a seismic increase that could go a long way toward more robust enforcement. 

I'd like to also point toward a virtual event that took place this week with the folks at Duke University and FTC Commissioner Christine Wilson. Unfortunately, I missed the event, but read Wilson's keynote address, "Exploring Options: Overcoming Barriers to Comprehensive Federal Privacy Legislation." In it, Wilson focuses on the two main barriers for passing a federal privacy law — say it with me, everyone: state preemption and private rights of action. 

I'm not going to attempt a summary here, as her comments are nuanced, but it's worth a read. Though I would point out that she supports preemption and pushes back on a blanket private right of action, but highlights the suggestion that a right of action could be narrow and involve sensitive data only, for example.

Regarding a private right of action, Wilson supports an alternative framework for remediation. "Specifically, the discussion should not be limited to the question of whether federal privacy legislation should have a private right of action," she said. "Instead, the discussion should focus on establishing a constructive remedial framework. To do this, legislators should consider the policy goals of the regulatory regime, how best to accomplish those goals, and how best to create appropriate levels of deterrence."

I would also direct you to the work Prof. David Hoffman has led with a team of students at Duke University's Sanford School of Public Policy. They explored how other laws implemented preemption and remedies. Accordingly, they created a "website for use as a resource by policy stakeholders who are developing proposals for inclusion in a comprehensive federal privacy law." 

Significantly, the FTC and a federal privacy bill will be a focus next week when the U.S. Senate Committee on Commerce, Science, & Transportation convenes a hearing entitled, "Protecting Consumer Privacy" at 10 a.m., Wednesday, Sept. 29. According to the site, the "hearing will examine how to better safeguard consumer privacy rights, including by equipping the Federal Trade Commission with the resources it needs to protect consumer privacy through the creation of a privacy bureau; and the need for a comprehensive federal privacy law." The witness list is impressive, too, with former FTC Bureau of Consumer Protection Director David Vladeck, former FTC Commissioner Maureen Ohlhausen, The App Association President Morgan Reed and former FTC Technologist Ashkan Soltani all slated to testify. 

Though you might be too busy with your day-to-day operations, you can be certain that we'll be tuning in to bring you the highlights. In the meantime, enjoy the weekend! 


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