After historic voter turnout for both political parties across the United States and days of tense scrutiny of vote counts in a handful of states, former Vice President Joe Biden and Sen. Kamala Harris, D-Calif., were projected Saturday to win the presidency. Though the Trump administration has not yet conceded the election, the Biden team has initiated and shared some of its transition plans.
The shift in executive leadership will affect the privacy landscape, particularly with regard to a potential federal privacy law, new leadership in government agencies and renewed efforts to work with the EU on data transfers, post-"Schrems II."
"We can expect privacy to be an area of greater focus and attention during a Biden administration," Perkins Coie Partner Janis Kestenbaum told the IAPP.
Federal privacy legislation
Lawmakers on both sides of the political aisle have been progressing on draft proposals in the last 18 months, and action on federal privacy legislation progressed into this fall, with the U.S. Setting an American Framework to Ensure Data Access, Transparency, and Accountability Act, which represented a "conglomeration of three previously introduced legislative proposals," IAPP Senior Westin Research Fellow Müge Fazlioglu, CIPP/E, CIPP/US, pointed out in September.
With a Biden administration, there is optimism movement on federal privacy legislation will continue.
"I really do think that in this next Congress federal privacy legislation will come to a head, and a Biden administration will facilitate that," Sidley Austin Partner Alan Charles Raul said. He said he sees this coming from Congress as both the Republicans and Democrats have been interested in promoting privacy bills and both sides have been committed to comprehensive legislation.
Federal privacy legislation was not necessarily a priority for the Trump administration, Raul explained in a phone conversation, "while there was no indication Trump stood in the way of a forged compromise, I think Biden will be more active."
Last week, California voters approved Proposition 24, which paves the way for a stricter California Privacy Rights Act, something Raul thinks will also help energize a federal response. "It doesn't make sense to have different state privacy regimes operating in an economy that is not only national but international," he said.
EU-US Privacy Shield and data transfers
With this year's "Schrems II" decision looming over international data transfers, particularly between the U.S. and EU, what role, if any, could a Biden administration play in moving things forward?
Perkins Coie's Kestenbaum said the "transition to a Biden administration is also likely to smooth the way in negotiations with the European Commission over a new version of the Privacy Shield," though, she tempered expectations saying, "real challenges from the 'Schrems II' ruling exist regardless of who is in the White House."
Raul, who formerly served as Vice Chairman in the U.S. Privacy and Civil Liberties Board under President George W. Bush, said the U.S. has traditionally been a leader in privacy going back to 1890, but that there has been a leadership vacuum in Washington in recent years.
"I hope under a Biden administration there will be a greater ability to have effective dialogue with the EU and Europeans acknowledge publicly that there is a mutually beneficial relationship with intelligence agencies in the U.S. and EU member states. I hope there will be more effective communication by the U.S. and a more receptive audience in the EU," he added.
Some leaders in the EU may be more receptive. Politico reported German Chancellor Angela Merkel, in light of the Biden victory, said, "we Germans and Europeans know that in this partnership in the 21st century we have to take on more responsibility. ... America is and will remain our closest ally, but it expects more from us — and rightly so. We are working on it."
FTC enforcement and government agencies
Though it's not the only privacy regulator on the block, eyes are on what a Democrat-lead FTC could look like under a Biden administration.
Kestenbaum, who served as senior legal advisor to FTC Chairwoman Edith Ramirez during the Obama administration, said, "There’s certainly no need to 're-energize' the FTC: the FTC during Chairman Simons’ tenure has been very active on privacy issues, as reflected in record settlements in the Facebook settlement and several COPPA cases, as well as the early launch of a COPPA rulemaking proceeding in 2019."
In fact, on Monday, the FTC announced a data security settlement with video-conferencing company Zoom.
True, the FTC has remained active under the Republican-led agency, but Kestenbaum said, "we will nonetheless see enforcement to another level of vigorousness — including a greater emphasis on individual liability, which is something that both Commissioner Chopra and Commissioner Slaughter have emphasized in their opinions."
Current FTC Chairman Joe Simons can serve until 2024, but he has been rumored to be stepping down in recent months. A Democratic president also means the agency will gain a majority of Democratic commissioners.
"Biden will have an opportunity to designate who he wants to serve as chair and is also likely to have the opportunity to name a new commissioner early on if Chairman Simons chooses to leave the agency, as is expected, to flip the commission to majority Democratic," Kestenbaum pointed out.
The FCC and privacy could also come back into play, potentially reviving an Obama-era effort to implement net neutrality rules. Early in its tenure, the Trump administration reversed an Obama-led initiative to realign privacy enforcement of the telecommunications sector.
In addition to the FTC and FCC, eyes will be watching Biden's picks for his cabinet, including for Commerce and Health and Human Services. Of note, California Attorney General Xavier Becerra is on the contender list for potential attorney general of the U.S. or Department of Homeland Security Secretary. Gov. Gavin Newsom, D-Calif., has also indicated Becerra could fill Kamala Harris's vacated Senate seat. Becerra became state attorney general after Harris left the position to become a senator.
Cybersecurity
In addition to privacy, Raul believes cybersecurity policies will gain great attention under the Biden administration. He underlined the Cyberspace Solarium Commission report, in which it pointed out the reason for continued cybersecurity issues in the U.S. Raul said there has been a "failure of strategy and leadership" in this space and that "the time has come for greater accountability of our government defending against cyberattacks."
He said these attacks are the number-one national security threat in the U.S., from both a geopolitical and economic standpoint, and "the government needs to be more accountable to the public on this."
Big Tech and international relationships
Several media outlets are scrutinizing how a Biden administration will regulate Big Tech and Silicon Valley.
According to Axios, the "spotlight will brighten on privacy, surveillance and hate speech online." The Biden team has already pledged to create a task force to investigate online harassment and real-world extremism and violence.
The Associated Press also collected together potential shifts in U.S. relationships with the Asia-Pacific region, including a changed tone with China, which recently unveiled a draft privacy law.
Photo by David Everett Strickler on Unsplash
