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United States Privacy Digest | Notes from the IAPP, Feb. 12, 2021 Related reading: Notes from the IAPP, Feb. 5, 2021

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Greetings from Newfields, New Hampshire!

Like my colleague Jennifer Bryant, I've been scouting out emerging privacy bills in state legislatures across the U.S. During the last two weeks, I've offered stories from hearings on bills in Virginia and North Dakota, which joined Washington in moving beyond the introduction phase of the legislative process. Those two pieces of legislation ended up with opposite outcomes due in large part to their substance and detail, but there's more at play with each bill. 

The stars aligned for Virginia's privacy efforts in a few ways. State Sen. David Marsden, D-Va., made clear that Virginia is the place to pass the Consumer Data Protection Act because the state is "responsible for the Internet," clarifying that 70% of Internet traffic goes through the state. A more glaring factor is the state's current political landscape with a Democratic governor and Democrats controlling both chambers of the Virginia General Assembly. Preparation ahead of the introduction of the CDPA to the assembly also shouldn't be overlooked.

North Dakota did not go the route of comprehensive legislation like Virginia, which you'd presume might make its opt-in consent bill an easier sell. However, an immediate question from many professionals seeing the bill on the docket: What does privacy mean to North Dakota? Well, that's still unclear. House committee members asked some informed questions on provisions, but other inquiries sought clarification on basic privacy principles. While the presentation of the bill from State Rep. Tom Kading, R-N.D., was well-intentioned, there were responses of "I'm not sure" and others like it to his colleagues' questions.

Given what I've gathered from those two processes, I'm keen on the idea that the next shoe to drop on the state legislative front could be Oklahoma's House Bill 1602. The pace and support for this effort falls more in line with that of Virginia. State Rep. Collin Walke, R-Okla., needed 10 minutes before the House Committee on Technology to sway members to vote 6–0 on advancing the legislation to a full House vote. This bill also has overwhelming bipartisanship as Republican and Democratic representatives and senators comprise the list of co-authors.

But what struck me most was the fiery passion Walke brought with his argument to move HB 1602 forward. "Why is opting in important? Because it's the gold standard in data privacy," Walke said during the presentation. "That's why this bill isn't (like) California. This bill is Oklahoma and we're setting the Oklahoma standard." Walke went on to discuss his anger over "being exploited for the last 20 years" by Big Tech, which he alleged included lobbying against HB 1602 with "misinformation" in the days leading up to the hearing. And as far as the push to do something at the state level rather than waiting for federal privacy legislation, Walke said, "I don't know about you, but I'm not waiting on the feds to fix our problems here in Oklahoma."

Walke tried to appeal to the concepts of necessity, logic and setting a new standard, which you have to think are all desirable for lawmakers, and the lack of debate and discussion after he finished said as much. It goes to show that while preparation and knowledge are key, passion may well be a deciding factor in a lot of these legislative endeavors.

Be well, folks.

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