Privacy Recap: Senate Commerce Committee Holds Hearing, Republican Members Introduce SAFE DATA Act

There have been two recent developments of note on the topic of privacy at the federal level, specifically before the Senate Committee on Commerce, Science, & Transportation.

First, on September 17, Committee Chair Roger Wicker (MS), along with three fellow Republican members (John Thune (SD), Deb Fisher (NE), and Marsha Blackburn (TN)), introduced the Setting an American Framework to Ensure Data Access, Transparency, and Accountability (SAFE DATA) Act.

The SAFE DATA Act is a revised and expanded version of a November 2019 staff discussion draft that I summarized in a Perspectives from FSF Scholars, "Federal Privacy Legislation: Bipartisan Discussions Devolve into Dueling Drafts."

The bill formerly known as the United States Consumer Data Privacy Act "has been updated to clarify definitions, expand the scope of data that is covered under the bill, and protect consumers from being manipulated by algorithms used by online platforms."

With respect to this last point, it incorporates language from the Filter Bubble Transparency Act introduced by Senator Thune and the Deceptive Experiences To Online Users Reduction (DETOUR) Act introduced by Senator Mark Warner (D VA).

It also appropriates $100 million to the FTC to carry out its provisions and authorizes the agency to obtain monetary relief on behalf of consumers for violations of the FTC Act.

Second, the Commerce Committee on September 23 held a hearing on the topic of privacy. Witnesses at "Revisiting the Need for Federal Data Privacy Legislation" included:

• Julie Brill, former FTC Commissioner and current Corporate Vice President, Chief Privacy Officer, and Deputy General Counsel for Global Privacy and Regulatory Affairs at Microsoft Corporation;
• William Kovacic, former FTC Chairman and Commissioner and current Director of the George Washington University Competition Law Center;
• Jon Leibowitz, former FTC Chairman and Commissioner, now an attorney at Davis Polk & Wardwell LLP and co-chair of the 21st Century Privacy Coalition;
• Maureen Ohlhausen, former FTC Commissioner and Acting Chairman, now a partner at Baker Botts L.L.P.; and
• Xavier Becerra, California Attorney General.

Among other things, the hearing focused on the heightened need for federal privacy legislation in light of the COVID-19 pandemic and the effectiveness of the California Consumer Privacy Act (CCPA) and its implementing rules.

Press reports indicate that, while a private right of action and preemption of state laws continue to serve as sticking points, lawmakers instead emphasized those areas upon which they agree. Nevertheless, it remains to be seen whether Congress will act this year.