Congress could codify privacy rights with a bipartisan bill
It’s crunch time on Capitol Hill.
Congress’ August recess starts in just a few weeks, so lawmakers are hoping to finish up some work before they skip town. One item of business with increased urgency for many is codifying privacy rights.
Last week, President Joe Biden signed an executive order on the issue. And some lawmakers in Congress hope they can do more to protect privacy in the coming months with the American Data Privacy and Protection Act.
Cristiano Lima is a reporter at The Washington Post. He called the bill a “landmark proposal.” The following is an edited transcript of his conversation with Marketplace’s Kimberly Adams.
Cristiano Lima: One of the key components [of the bill] is it minimizes how much data companies can collect on you. And basically says, businesses can only collect and use data that’s required to serve products to users. It would also create some transparency requirements, forcing companies to disclose what data they’re collecting. It creates rights for users, including the right to access and delete data. And it also gives them a limited right to bring lawsuits against companies.
Kimberly Adams: So how much support does the American Data Privacy and Protection Act have?
Lima: So it has broad support in the House, but where it’s really running into hurdles is in the Senate. Senate Commerce Chairwoman Maria Cantwell [D-Wash.], who is a key figure in these discussions, she told me a few weeks ago that she thinks the enforcement mechanisms are too weak. And so that’s the biggest hurdle at the moment to this proposal actually getting signed into law.
Adams: You mentioned that there are sticking points on the Hill in terms of what should and shouldn’t be in a privacy law at all. What are those sticking points? And how are they showing up in this particular piece of legislation?
Lima: So the two issues that have really held up talks for years are, one, the question of whether a federal law should override state laws on privacy and [two] whether it should give consumers a direct right to bring lawsuits against companies. Republicans have, in the past, pushed for a federal framework that preempts state laws out of fear of a patchwork of state laws making compliance for businesses difficult, while Democrats generally have thought that states should be able to expand on the protections of the federal government. And the other issue with the private right of action, that’s something that Democrats support — the right to bring a lawsuit — whereas Republicans have typically expressed concerns about consumers being able to unleash sort of a litigation nightmare on businesses. This proposal tries to strike a balance between those two point of views by preempting most state laws but providing only a limited right to consumers to bring lawsuits.
Adams: Privacy has been something on a lot of Americans’ minds, particularly considering this Dobbs decision out of the Supreme Court. How might this particular bill address some of the concerns that consumers have about their data potentially being used to prosecute illegal abortions?
Lima: There are some heightened protections around health information, things like information on recent diagnoses or treatment. But that’s not the primary aim of this legislation. And so we’ve already heard from some Democratic lawmakers calling for additional protections to be passed in sort of a separate bill.
Adams: What other bills are we seeing from Congress to specifically address reproductive data? And where does that legislation stand?
Lima: So there was another proposal introduced earlier this year by Congresswoman Sara Jacobs [D-Calif.] called the My Body, My Data Act that specifically deals with reproductive health data. And it’s similar in scope, but it very specifically tries to address this issue and minimize the reproductive health data that companies can collect, how they can use it. It would not override state laws, so it would allow states to expand on those protections. But it is a bill that’s backed only by Democrats. And so it’s very unlikely to advance on Capitol Hill.
Adams: Last week, the White House issued an executive order about protecting access to reproductive care. And it had several sections dealing with data privacy. What’s changing as a result of that?
Lima: President Biden has asked the Federal Trade Commission to look at ways to protect reproductive health data. And so one particular aspect of the executive order is that it asked the agency to look at deceptive practices that companies might be engaging in. So one example of that is if a company were to say it’s collecting information from a reproductive health app for a very specific service, but in fact, it’s using it to run a bunch of ads. But you know, it’s unclear how much the agency will actually be able to do. The FTC and its leaders for years have said that they are under-resourced, understaffed, and efforts to greatly expand their privacy enforcement in recent years have also stalled on Capitol Hill.
Adams: We’re talking a lot about legislation in development. When might you and I and regular consumers see our online experience change as a result of all of this?
Lima: Certainly lawmakers are optimistic that they might be able to get something signed into law by the end of the year. But unless they’re able to convince Senate lawmakers, Senate Democratic leaders in particular, it could be difficult to do that, especially with the midterm elections looming. But this is an issue that has been moving along, while slowly, on a bipartisan basis. And so even if control of Congress shifts, we could potentially still see lawmakers making progress in the coming years.
Related links: More insight from Kimberly Adams
For the Post’s Technology 202 newsletter, Lima has an interview with Democratic Sen. Cantwell outlining her objections to the bill. He also wrote about why some advocates of the American Data Privacy and Protection Act fear that including abortion or reproductive health data in the legislation could jeopardize its passage.
The Markup has a story on the misconceptions about privacy protections and why they matter.
Plus, a Vox explainer on the White House executive order.
The executive order itself has all the details. A lot of it is requests for federal agencies to do things, like asking the Department of Health and Human Services to look into how HIPAA rules about protected health information might pertain to abortion-related information.
HHS also issued a guide on how to protect your health information on your phone or tablet.
We’re linking to that because … well, that’s where we are, isn’t it?
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