Greetings from Portsmouth, New Hampshire!
I sound like a broken record when I serve you my version of this letter each month and ramble on about state privacy law. But the fact is the legislative madness at the start of each calendar year is just impossible to ignore and even more so now with its proliferation beyond just a handful of states.
That expansion, and the varying legislative processes, makes tracking the progress of these active bills a daunting task. The IAPP tries to keep you apprised through my updates and our updated "U.S. State Privacy Legislation Tracker" and comparison chart, maintained like a hawk this year by Westin Research Fellow Taylor Kay Lively.
Even with our periodic updates, the state of play in the states seems to be in flux on a near daily basis. So with some sessions nearing adjournment, I give you the latest information — parts intel, observation and speculation — on the most active bills this session.
- Florida House Bill 9: I wrote about Florida clearing its final House committee hurdle this week and the bill is now on the House's special orders calendar for March 1. Passage out of the House is and was expected given the prior appetite for privacy with the House. The true test will be with the Senate, where I just can't imagine the bill's private right of action surviving if lawmakers want to complete this effort. "If Florida wants to incentivize large companies to do business here, then creating private rights of action that are targeted towards wealthy companies will have the opposite effect," Shook, Hardy & Bacon Partner Al Saikali told me. "It creates a bad precedent that you will see replicated in other (non-privacy) laws. It’s the 'camel's nose under the tent' situation."
- Indiana Senate Bill 358: This Virginia copycat bill also mirrored the quick legislative process Virginia showed last year. That is until it was reported out of committee to the House floor, where it has sat since Feb 17. The current hang-up is unclear. A failed amendment to add language prohibiting child pornography sparked debate that was expected to carry over into a floor vote. The Indiana attorney general's office, which would enforce the law, also threatened to pull its support if the bill did not carry a consumer privacy fund like that found in Virginia's bill. Making matters more interesting is the Indiana House has a Feb. 28 deadline to give Senate bills a third reading. SB 358 is on its second reading and is not featured on the draft House agenda for deadline day. Stay tuned here.
- Wisconsin Assembly Bill 957, Iowa House File 2506: Here we have two more Virginia models — take note of the Midwest theme with this copycat trend — that have shown a little gusto with their tracks in recent weeks. Wisconsin's bill cleared committee and the Assembly floor in the matter of two days this week after sitting idle since it was introduced Feb. 3. The Senate adjourns March 10, so the Senate's existing priorities will likely determine the fate of this bill. Iowa's bill is trending in a good direction, being converted from a study bill to an official proposal while getting unanimous committee support and being placed on the House consideration calendar. Also working to Iowa's favor is time, with the session set to close April 19.
I didn't mention the prospects of bills in Connecticut or Oklahoma because those sessions and journeys are just beginning. I will say I've had both states locked in as my favorites to pass bills dating back to last year. I've liked the substance of those bills, along with the passion and knowledge of their sponsors, since each made a run last year.
To sum it all up, we're talking about a very fluid landscape that may produce multiple laws or none at all. As Andy Williams would say, "It's the most wonderful time of the year."