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United States Privacy Digest | Notes from the IAPP Publications Editor, Oct. 5, 2018 Related reading: Takeaways from record COPPA settlement

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Greetings from Portsmouth, NH!

I write to you as Capitol Hill roils over the confirmation of Judge Brett Kavanaugh to the Supreme Court. With less than five weeks to go until what might be the most significant midterm election in recent memory, the political rhetoric is heating up. And so, as we consider what, if any, federal privacy legislation comes out of Washington, it's hard not to look through the lens of a divided political system that grows more adversarial by the day. 

No doubt there is some political will, backed by industry, to formulate a national regulation. We heard from several top industry representatives last week, and now it's the privacy advocates' turn.

Earlier this week, the American Civil Liberties Union published its stance in a Washington Post op-ed. To no one's surprise, they back a strong federal privacy law, but one that sets a floor for states, not a ceiling. The ACLU's version of a strong federal law would "put consumers in control of their data" and provide "government with a large stick for enforcement and consumers a way to take companies to court that violate privacy." 

We'll hear more from the privacy advocacy side next week when the Senate commerce committee holds a second hearing on consumer privacy. Interestingly, European Data Protection Board Chairwoman Andrea Jelinek will testify. I personally don't remember a non-U.S. regulator testifying in front of Congress, so this should be interesting. She'll be joined by one of the main forces behind the California Consumer Privacy Act of 2018, Alastair Mactaggart, who will also keynote the IAPP's Privacy. Security. Risk. in less than two weeks. Center for Democracy & Technology President and CEO Nuala O'Connor and Georgetown's Laura Moy will also join what will surely be an interesting discussion. Angelique Carson will be on hand during the hearing to keep tabs on the latest developments. 

Minority Leader Nancy Pelosi and Rep. Ro Khanna also jumped into the privacy fray this week by releasing their "Internet Bill of Rights." How many privacy bills of rights does that give us now?

Joking aside, it's a set of privacy provisions Pelosi says she'll aim to implement if the Democrats take the House this November. Stakeholders consulted include Apple, Google and Facebook, as well as the CDT and tech luminaries Nicole Wong and Tim Berners-Lee. Nothing to scoff at. The 10 principles include user access rights, opt-in consent, "appropriate" data deletion, timely notification, data portability, net neutrality, data minimization for service providers, a provision against unfair discrimination based on personal data, and business accountability. 

In describing potential legislation, Pelosi said, "It is not a question of being antagonistic, but being ready to find a better way for the future. ... Think backward a dozen years and look forward a decade. Like they say, you haven't seen nothing yet." 

Khanna told columnist Kara Swisher that he recognizes there is a long road ahead and that bipartisan support is needed. "This is a 15-year fight, but I do not think tech is immediately primed against it and Congress is more willing to be strong on regulation," he said. "Tech is amoral — it is great in many ways but not as great in others, and they need to now spend the next 10 years thinking about how they shape that tech for public good." 

A long road, indeed, one fraught with November's deep potholes. 

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