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United States Privacy Digest | Notes from the IAPP, Sept. 9, 2022 Related reading: Notes from the IAPP, Sept. 2, 2022




Greetings from Portsmouth, New Hampshire!

It's hard not to discuss the prospects of the proposed American Data Privacy and Protection Act these days. A new take or development related to the comprehensive privacy bill captures our attention on a near-weekly basis.

Case in point was the announcement that U.S. House Speaker Nancy Pelosi, D-Calif., won't bring the ADPPA to the House floor with its current preemption provisions in place. She said the current proposal "does not guarantee the same essential consumer protections as California’s existing privacy laws" and "states must be allowed to address rapid changes in technology."

Pelosi and House Committee on Energy and Commerce Chair Frank Pallone, D-N.J., indicated dialogue to explore a potential preemption compromise would happen in the days after Pelosi's announcement. But what does a path forward look like beyond a "yes" or "no" on preemption? Where's the middle ground?

A potential best compromise may lie with a sunset on preemption. This would give federal lawmakers the immediate unified standard it's aiming for before states retain the authority to act where they see fit, eliminating the issue of U.S. Congress setting a ceiling on legislation that it may not get back around to updating in a timely manner.

"A preemption sunset makes complete sense," Washington University School of Law Koch Distinguished Professor in Law Neil Richards said. Richards and Wilmer Hale Partner Kirk Nahra, CIPP/US, spoke at length about sunsetting preemption at the IAPP Global Privacy Summit 2022. "Conflicting laws can be a problem, but Congress passed on a comprehensive privacy law in 1974 and has failed to pass one since. We’ll need state privacy laws in the future, and a sunset solves the problem."

The sunset concept isn't novel to federal privacy musings. The Brookings Institution published "Bridging the Gaps: A Path Forward to Federal Privacy Legislation" in 2020, dedicating an entire section to elaborating on a proposal for a sunset on preemption after eight years. Authors said the goals of this sunset model would be to "ensure that there will be demand for Congress to revisit the success (or lack thereof) of the federal privacy regime" and provide "a safety valve to address future privacy concerns."

Some Republican members of the House have shown their hands on preemption, openly indicating the fragile consensus they've bought into can't be changed or their support will be lost. It's unclear what kind of specific updates may lose Republicans, but a sunset comes across as a lesser blow than carveouts or exemptions.

However, people with connections to those involved in ADPPA drafting told me lawmakers are unfazed by a sunset and the concept has mostly slipped by the wayside. That's a logical stance if you have compromise or a winning solution, neither of which Congress has right now.

If balance and fairness are the keys to making the ADPPA workable across the board, it only makes sense to at least discuss a preemption sunset as the balanced and fair compromise it presents itself to be.

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