The U.S. Senate has remained mostly quiet since the release of the bipartisan bicameral American Privacy Rights Act discussion draft in April. The U.S. House's work on various iterations of the comprehensive privacy proposal has taken the spotlight since, leaving the Senate to wait its turn in the legislative process.
But in the face of a House stalemate over the bill, the Senate is moving off the sidelines. Senate Committee on Commerce, Science and Transportation Chair Maria Cantwell, D-Wash., held a full committee hearing 11 July to stress the need for federal privacy legislation more than ever before as artificial intelligence threatens to accelerate perceived consumer harms.
While lawmakers framed the hearing as exploring the broader connectivity between AI and privacy, the committee leaned heavily into the importance of privacy legislation as well as which policies and standards fit the moment the U.S. is in.
The proposed APRA is a product of a compromise between Cantwell and House Committee on Energy and Commerce Chair Cathy McMorris Rodgers, R-Wash.
The bill has not yet been formally introduced to the Senate and was only mentioned by name a handful of times during the hearing. However, the direct mentions of the bill pulled back the curtain on how the policy debates plaguing House lawmakers are present in the Senate as well.
Familiar split
Senate Commerce Democrats are committed to policies grounded in data minimization, consumer rights, anti-discrimination and other consumer-focused points. Republicans on the committee raised business concerns, including how over-regulation, a private right of action and weak preemption in any federal privacy statute will stifle innovation.
Comments by Chair Cantwell and Ranking Member Ted Cruz, R-Texas, reflected the respective party positions and fell in line with their initial public comments upon the April introduction of the first discussion draft.
Cantwell expanded upon a range of detailed examples of data misuse and consumer harms that have taken place without a federal privacy law and baseline requirements in place. She said those instances are only going to grow as AI and its need for training data increase.
"I believe our most important private data should not be bought or sold without our approval, and tech companies should make sure they implement these laws and help stop this kind of interference," Cantwell said, specifically noting the proposed APRA is the right model to accomplish those goals.
On the other side, Cruz is equally unmoved in the months following initial blunt critiques and subsequent opposition to the APRA. He restated his emphatic opposition to the bill, noting business innovation has long been "stymied or delayed by governments that impose regulatory policies to address supposed harms" and citing the EU's perceived model "where government technocrats get to second-guess and manage perceived risks."
Cruz, in his first year leading Senate Commerce Republicans, also spoke pointedly about targeted APRA issues, saying the current bill is "more about regulatory control of the internet than personal privacy."
"Right now, this bill is not the solution," Cruz said. "It delegates far too much power to unelected commissioners in the (Federal Trade Commission), focuses on algorithmic regulations under the guise of civil rights."
The latest version of the APRA currently under a stalemate in the House Energy and Commerce committee stripped provisions for civil rights protections and algorithmic accountability to try to attain further bipartisan compromise. That attempt was met with increased pushback from lawmakers and stakeholders alike, forcing a last-minute cancellation of a full committee markup and potential advancement to the House floor.
Additionally, House Republican leadership made public its reluctance for any bill that contains a PRA or raises perceived compliance burdens through loose preemption.
Finding a path forward
In an interview with Axios before the day before the hearing, Cantwell shed light on the prospects of the proposed APRA moving forward in the 118th Congress. Speaking on the current House stumbling blocks, Cantwell said she is "not sure what the timing is" on House consideration of the comprehensive privacy proposal, but she remains in contact with House Energy and Commerce Chair Rodgers. She added, "I don't think (the APRA) is done in the House."
During the hearing, Cruz and Sen. Jerry Moran, R-Kan., both indicated there is ongoing outreach to Rodgers and a willingness to help carve out a path for a workable framework.
Moran was particularly candid about his willingness to "work with any and all" to see this legislative process on data privacy through to final passage. He's proposed a range of comprehensive privacy bills in recent years that have taken a backseat to those put forth by Cantwell and Rodgers along with Sen. Roger Wicker, R-Miss., and House Energy and Commerce Ranking Member Frank Pallone, D-N.J.
"We have come so close so many times but never quite over the finish line," Moran said. "The problems and challenges with the lack of our success continue to mount. I don't know that the issues get more difficult to resolve, but we still haven't found the will to overcome the differences each of us think is pretty important."
Joe Duball is the news editor at the International Association of Privacy Professionals.
