Update: Friday, June 3, 2022 – 1:54 pm ET: After the IAPP went to press, the bipartisan draft discussion bill, called the American Data Privacy and Protection Act, was released to the public.
Greetings from Portsmouth, New Hampshire!
Confetti is dropping, party horns sounding and victory laps are beginning. That's the vibe surfacing after revelations that U.S. Congress is lining up a bipartisan comprehensive federal privacy framework that reportedly includes versions of preemption and a private right of action.
Consensus should absolutely be celebrated considering how far apart Democrats and Republicans have been since first digging into data privacy. But being the realist I am, I can't help but pump the brakes on the idea that this is "the moment." I've only been in the privacy space for a little over three years, but I've come to realize premature declarations of "done" are too common. This "too soon" concept is reinforced by a lack of full buy-in on the new draft and a whole legislative process ahead that requires time Congress may not have at this point in the year.
There are more reasons for my wet towel attitude. The current state of Congress and its ever-growing list of priorities tops my list. I'd like to think data privacy holds importance among federal lawmakers, and these developments continue to show firmly on some Capitol Hill radars. But I can't pretend the war in Ukraine, mass shootings, inflation and other happenings don't take precedent. And sadly, work on those big topics has been slow and burdened by partisanship while the next big issue is waiting to be added to the agenda. So in the grand scheme, those bigger legislative topics will rightfully take away time and effort from a privacy bill.
Then there's how we've reached this consensus. We can credit years of thoughtful discussion and due diligence, but it's likely a "push comes to shove" scenario. Senate Committee on Commerce, Science, and Transportation Ranking Member Roger Wicker, R-Miss., a fixture in past and current federal privacy negotiations, is likely moving committees and off the privacy beat come November. Is Wicker going to let his past work get laid to waste? Unlikely. Are Democrats going to risk losing all momentum and restarting the dialogue with new Republican leadership that has a different agenda or appetite for privacy? Also unlikely. So that leaves us with the current state of affairs.
I'm also basing skepticism on what I've seen at the state level on privacy. Lobbyists' voices matter, for better or worse. Forging coalitions matter. The degree to which each of those factors has been present has made or broke state's efforts to thoughtfully legislate on privacy. I can't say I know the current status of each factor in the federal discussion, but a new bill — regardless of familiar provisions or concepts — will be tested by both in a short window.
Maybe I'm completely off base. Maybe I have it all figured out. What I know for sure is there's a heck of a lot riding on the next steps or shortcomings, including the privacy profession as a whole.
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