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United States Privacy Digest | Notes from the IAPP, July 15, 2022 Related reading: Notes from the IAPP, July 8, 2022




Greetings from Portsmouth, New Hampshire!

It appears we're in line for further action on the proposed American Data Privacy and Protection Act next week with the U.S. House Committee on Energy and Commerce likely to place the bill on its next markup agenda. The move adds fuel to a potential passage out of the House, but reports surfaced regarding some House members souring on current preemption provisions, particularly as it relates to the California Privacy Rights Act.

This could be a mere hiccup in the House's efforts to advance the bill to the Senate. However, the reality is moving chambers might actually bring this bill closer to its demise, if we're being honest. If anything the odds may have decreased of late.

New developments to support this skepticism include the U.S. Supreme Court's Roe v. Wade reversal throwing a new wrinkle into the bill's policy discussions due to a perceived lack of privacy safeguards and an inability to bring lawsuits or collect damages when sensitive health data is used. Then there's the renewed argument around preemption spurred by the California Privacy Protection Agency's letter to House Speaker Nancy Pelosi, D-Calif., regarding why preemption "would hurt Californians," including diminished agency authority, potential delay to required global opt-out and more. 

But the major wild card here belongs to Senate Committee on Commerce, Science, and Transportation Chair Maria Cantwell, D-Wash., whose name was notably absent from the initial discussion draft. 

Cantwell all but knows she's in the driver's seat with this bill since she leads the Senate committee that will handle its path to final approval. Her initial opposition came due to a lack of stronger consumer redress despite the inclusion of limited private right of action, a landmark inclusion in itself. Cantwell and other Democratic committee members recently made clear their issues with the bill's lack of provisions for protecting women's reproductive health care privacy. All this after revelations that she effectively killed a reported bipartisan compromise over the winter before the ADPPA surfaced. And before any of these issues materialized, Cantwell bowed out of bipartisan talks for a bill in 2019 before proposing her own bill, which she's mulling formal reintroduction of as an alternative to the current bipartisan bill in the House.

So with Cantwell's reservations all being aired out, the question is pretty simple: What does she want? Frankly, it's unclear and doesn't appear as though it will be fleshed out anytime soon, which doesn't jibe with the shrinking window to finalize legislation.

With all this in mind, I keep falling back to a line from House Committee on Energy and Commerce Subcommittee on Consumer Protection and Commerce Chair Jan Schakowsky, D-Ill. She said during the subcommittee markup that "perfect won't be the enemy of the good" with this bill.

To this point, Schakowsky's words have fallen on deaf ears.

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