Privacy legislation stalled in Congress, lawmakers turn attention to midterm elections

Data privacy legislation has lost momentum in Congress despite bipartisan support for developing new laws to protect Americans.

Lawmakers introduced at least 30 bills this Congress, according to the International Association of Privacy Professionals, but none of the legislation is approaching the finish line.

Failing to reach a consensus on which bills to pursue, the midterm election politics have now drawn lawmakers’ attention elsewhere.

“This year is an election year so it’s going to be challenging to pass federal law. This is an area where there hasn’t been consensus across the aisle, and privacy is not seen as a winning electoral issue. But I think that’s the wrong way to think about it,” said Tatyana Bolton, policy director of the R Street Institute’s cybersecurity and emerging threats team.

Ms. Bolton said disagreements exist around creating an avenue for people to sue over privacy violations, how federal law should address mismatching state laws, how much authority to delegate to the Federal Trade Commission and how to address civil rights issues. 

The political fight over privacy has sometimes turned personal. The bitter nature of the disagreement was on display during Wednesday’s big-data hearing before the Committee on House Administration. 

Rep. Rodney Adams, Illinois Republican, said the privacy issue belonged before another committee and said the Democratic leader of the House Administration Committee, Rep. Zoe Lofgren of California, was using the issue to raise her profile. 

“Americans’ call for a comprehensive solution to big data privacy issues is loud and clear and they deserve an answer, an answer that is built with bipartisan buy-in, transparency, and accountability,” Mr. Adams said. 

Several Big Tech companies want new privacy rules that work for them and are looking to play a role in writing those laws. Apple and Google hammered antitrust legislation earlier this year by claiming it would harm consumers’ privacy and put people’s data in the hands of foreign companies.

Microsoft has been active at the state level in recent years, including pushing privacy legislation in states such as Arizona, Hawaii, Illinois, and Minnesota in 2020, according to the tech publication Protocol. 

Facebook, which has reorganized as Meta, wants more internet regulation on several issues. Meta lists privacy and security as one of the areas where it said it wants clear standards. 

The absence of regulation can sometimes cost internet companies dearly. Facebook agreed to pay $90 million to settle a class-action data privacy lawsuit earlier this week in a case that carried on for a decade.

New rules also come with new compliance costs, but that is usually more of a drawback for smaller companies than the deep-pocketed behemoths such as Meta and Amazon.

Earlier this month, Meta told the Securities and Exchange Commission that its Facebook and Instagram services in Europe will end unless new data transfer rules are established. 

Guesswork about federal judges’ interpretation of laws and forecasting the enforcement of foreign regulations has affected Facebook’s approach to data privacy in ways that Congress has not. 

“It’s incredibly important for the U.S. to be a leader in this and not to sit back and allow others to dictate how we run our data security and data privacy in our networks and protect our consumers’ welfare,” Ms. Bolton said. “We need to take a stance, we cannot continue to sit back and allow others to dictate what we do.”

Ms. Bolton’s perspective comes from her years working inside the government and her organization, R Street, is an ally of Google. She served at the Cybersecurity and Infrastructure Security Agency from 2017 to 2020, and the R Street Institute is identified by Google on its September 2021 list of groups that “receive the most substantial contributions from Google’s U.S. Public Policy and Government Affairs team.”

While tech companies have more earnestly approached privacy issues, Big Tech’s loudest critics have blamed prominent companies for causing delays in legislative action. Sen. Amy Klobuchar, Minnesota Democrat, said earlier this month that Big Tech companies had successfully delayed legislation for decades as she pushed for new antitrust laws to be enacted now.