United States Capitol Building

As we have previously posted, it has been an active year on the state privacy law front.  Indeed, the number of states with privacy laws is about to nearly double in a matter of months,  with Iowa, Indiana, Montana, and Tennessee have already passed or are about to pass comprehensive privacy laws. 

Perhaps not surprisingly, the House Energy and Commerce Committee announced that the Subcommittee on Innovation, Data, and Commerce will hold a hearing titled “Addressing America’s Data Privacy Shortfalls:  How a National Standard Fills Gaps to Protect American’s Personal Information” on April 27.  At that meeting, it is expected that the Subcommittee will reconsider whether to move the American Data Privacy and Protection Act (ADPPA).  The ADDPA would largely preempt the growing patchwork of state privacy laws with a comprehensive national law.

However, while the patchwork of state privacy laws continues to grow, it is not clear that it will put enough pressure on Congress to overcome the hurdles that led to it stalling last year.  Indeed, while the laws that have passed or will likely soon pass do have important differences, they have all generally followed the model set by Virginia and Colorado (as opposed to California).  And, to date, only California and Colorado have created rulemaking authority—which in practice mitigates the compliance burden.  So, Congress may not be facing strong political pressure from business lobbyists. 

Further, the reported reason for the ADPPA stalling last year still exists—California leaders and representatives have argued that the ADPPA does not go far enough in providing the same privacy protections as the CCPA, and the CCPA should therefore not be preempted.  Although the Speaker of the House has changed, he is still from California and likely faces similar pressures.  And, even if it reaches the House floor and passes, it will still need to clear Senate Commerce Chair Maria Cantwell, who has criticized the bill in the past.  So, although the ADPPA may still have strong bipartisan support, it is not clear that its fate will be different this time around. 

Nonetheless, the fact that the House Energy and Commerce Committee is focusing on privacy reinforces what is shown from the action at the state level—this is an issue important to legislators.  Businesses should expect the regulators to be enforcing these laws aggressively.