Perspectives from FSF Scholars
June 16, 2022
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Bipartisan Privacy Discussion Draft:
Significant, If Incomplete, Progress
by
Andrew Long
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[Below is the Introduction and Summary to this latest FSF Perspectives. A PDF version of the complete Perspectives is here.]
Introduction and Summary
On June 3, 2022, two Representatives, one from each political party, and a Republican Senator unveiled a Discussion Draft of a comprehensive data privacy bill. The release of the bipartisan and bicameral " American Data Privacy and Protection Act" (ADPPA) itself is a noteworthy event, one long-awaited step toward the establishment of a critically needed federal data privacy regime that benefits both consumers and companies. But while the ability of these lawmakers to make meaningful progress toward breaking the longstanding logjam warrants commendation, it remains important to highlight how this proposed legislation should be improved before it becomes law. Specifically, the final version should reject a federal private right of action and preempt those already in place at the state level. |
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As a general principle, stakeholders have acknowledged for many years that personal online data transcends state borders and demands a national approach. Actual agreement on specific provisions, however, has remained out of reach. At this point, of course, the chief sticking points are well known:
- One, whether a federal privacy law should preempt state statutes. It should, for several reasons: (a) to provide consumers with a single set of clear and consistent rights no matter where they, or the companies with which they interact, may be located, (b) to minimize the compliance burdens faced by businesses, particularly smaller upstarts, and (c) to establish, at the national level, an appropriate balance between protecting individual privacy rights and fostering continued marketplace innovation.
- Two, whether privacy rights should be enforced through a private right of action – that is, whether consumers, individually or as part of a class, should be able to sue for damages. They should not. Private rights of action inevitably generate economic inefficiencies. The allure of attorney's fees distorts strategic decisionmaking and incentivizes frivolous lawsuits – which, in turn, impose substantial defense-related costs that, again, disproportionately harm smaller businesses and discourage new entrants. Exclusive enforcement by the Federal Trade Commission (FTC), on the other hand, avoids these concerns.
Prior to the release of this discussion draft, lawmakers representing both parties on several occasions reportedly came close to reaching a workable compromise on these issues, but each time their efforts ultimately fell short. In the face of the resulting federal silence, the states have generated a steadily louder cacophony: Connecticut recently became the fifth to pass its own unique comprehensive data privacy bill. The result is becoming unbearable – inconsistent, overlapping approaches create confusion for consumers and compliance nightmares for businesses – and these ill effects likely played a key role in carrying the ADPPA over the drafting finish line. With respect to private rights of action, however, additional heavy lifting is required.
* Andrew Long is a Senior Fellow of the Free State Foundation, an independent, nonpartisan free market-oriented think tank located in Rockville, Maryland. The views expressed in this Perspectives do not necessarily reflect the views of others on the staff of the Free State Foundation or those affiliated with it.
Read the complete Perspectives here.
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Videos of the Free State Foundation's Fourteenth Annual Policy Conference held at the National Press Club
Click HERE to watch the YouTube video of the Welcome and Introduction by Randolph May, President, The Free State Foundation, and a Fireside Chat – The View from the FCC, with Moderator: Seth Cooper, Director of Policy Studies and Senior Fellow, The Free State Foundation, and Panelists: Brendan Carr – Commissioner, Federal Communications Commission; Nathan Simington – Commissioner, Federal Communications Commission; and Mignon Clyburn – Former Commissioner and Acting Chairwoman, Federal Communications Commission.
Click HERE to watch the YouTube video of the Fireside Chat – The “Hottest Topics” in Communications and Internet Policy, with Moderator: Randolph May, President, The Free State Foundation, and Panelists: Meredith Baker – President and CEO, CTIA – The Wireless Association; Chris Lewis – President and CEO, Public Knowledge; Michael Powell – President and CEO, NCTA – The Internet & Television Association; and Jonathan Spalter – President and CEO,USTelecom – The Broadband Association.
Click HERE to watch the YouTube video of the Keynote Address by Russell Hanser, Director, Communications Policy Initiatives, National Telecommunications and Information Administration, with an Introduction by Bryan Tramont, Managing Partner, Wilkinson, Barker, Knauer, LLP, and Reactions by Robert Branson, President and CEO, Multicultural Media, Telecom and Internet Council.
Click HERE to watch the YouTube video of the Fireside Chat – The View from the FTC, with Moderator: Maureen Ohlhausen – Former Acting Chairman and Commissioner, Federal Trade Commission, and Panelists: Christine Wilson – Commissioner, Federal Trade Commission, and Noah Phillips – Commissioner, Federal Trade Commission.
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For now, we've changed the cover image on the Free State Foundation's Twitter and Facebook pages to the one below to express our support for the people of Ukraine in their brave fight to preserve their freedom and sovereignty. First things first.
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Check Out the Current FSF Job Openings
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In case you missed it…please see:
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FCC Chairman Ajit Pai's Farewell Address on January 8 – Click Here
Ilya Shapiro, Director of Cato Institute's Robert A. Levy Center for Constitutional Studies on January 22 – Click Here
FCC Commissioner Nathan Simington's Maiden Address on February 16 – Click Here
Fireside Chat with FTC Commissioners Noah Phillips and Christine Wilson on March 19 – Click Here
Fireside Chat with FCC Commissioner Brendan Carr on March 23 – Click Here
"Hot Topics in Communications Policy" Panel on April 27 – Click Here
Congressman Bob Latta's Keynote Speech on May 27 – Click Here
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