Just when you think Congress isn’t going to be able to do anything constructive for the rest of this presidential election year, out comes a bipartisan proposal called The Americans Privacy Rights Act of 2024. Its name is delightfully simple; it arrives after decades of failed attempts to create federal protections or American privacy rights. Given its authors — Sen. Cathy McMorris Rodgers, R-Wash., and Sen. Maria Cantwell, D-Wash — chair committees important to its passage, the proposed legislation seems to have a chance. It’ll get a hearing almost immediately. Rodgers has scheduled discussion for April 17 in the House Committee on Energy and Commerce.
The proposal attempts a tight-rope act on controversial elements that have stalled previous federal law efforts — namely state law pre-emption and the ability for consumers to sue bad actors, known as a private right of action. One at a time:
Corporations have long demanded pre-emption, arguing that they shouldn’t have to deal with 50 different state standards when crafting policies. That argument has grown increasingly more tenuous as time has passed and statehouse after statehouse has done the work to pass their own privacy laws. (Check out this IAPP tracker.) The count sits at 15 now, with more coming soon. Those state lawmakers never look kindly at their hard work being discarded by Congress. As a compromise, APRA would pre-empt state laws except when it wouldn’t. There are exceptions for consumer protection rules, for example.
Corporations and some conservatives also dislike the private right of action previous laws have included. Here’s why. The Telephone Consumer Protection Act allows consumers who receive unwanted calls to sue for $500 a pop under certain circumstances. That’s a powerful incentive to prevent spam phone calls. Sometimes, it can abused by class action lawyers. The alternative is to leave enforcement to state attorneys general or other government agencies, which aren’t always responsive to consumer complaints. APRA would create a TCPA-like right, and even set aside mandatory arbitration clauses for cases that involve minors or a “significant privacy harm.” You’d have to expect this provision will get major pushback. Without citing it specifically, Sen. Ted Cruz (R-Texas) issued a statement saying, in part, “I cannot support any data privacy bill that empowers trial lawyers.”
So, roadblocks remain. Still, arrival of The Americans Privacy Rights Act is a welcome surprise and…who knows? Perhaps Congress will take a step into the 21st Century.
For more reading, I found “10 Things to Know about APRA” at Wiley.com very helpful.” And So was this analysis by IAPP helpful.
CLICK HERE to read the American Privacy Rights Act discussion draft.
CLICK HERE to read the section-by-section of the discussion draft.
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