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The Devil is in the Definitions for Federal Consumer Data Privacy Safeguards

The Senate Commerce Committee held a hearing “Examining Safeguards for Consumer Data Privacy” on September 26, which included testimony from tech industry executives.

Senator John Thune’s opening statement noted that with the EU General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA) have put the issue of consumer data privacy squarely on the Congress’s doorstep. “The question is no longer whether we need a federal law to protect consumers’ privacy,” he said. “The question is what shape that law should take.”

The witnesses at the hearing were:

• Len Cali – AT&T

• Andrew DeVore – Amazon

• Keith Enright – Google

• Damien Kieran – Twitter

• Guy Tribble – Apple

• Rachel Welch – Charter Communications

Each witness provided an opening statement describing their company’s approach to privacy and outlined, in a general way, their proposals of what federal legislation should look like. Seventeen senators had a short time to ask questions.

The witnesses generally support a comprehensive U.S. privacy law that incorporates principles of transparency and consumer choice and that should include state preemption provisions. All generally agreed that the Federal Trade Commission is the best federal agency to enforce a new law, which presumably it would do through a rulemaking. Although the industry leaders seemed to agree that the FTC should have enough resources for enforcement, there didn’t appear to be consensus on whether the FTC should have more enforcement authority and what it would entail.

Several senators asked questions about the GDPR and CCPA. With respect to GDPR, most of the witnesses indicated that the burden of compliance was significant with one witness stating that “hundreds of years of human time” that has been invested in GDPR compliance. Several witnesses noted that the GDPR compliance obligations will squeeze out the small or middle-sized companies and that only large companies can afford to comply with GDPR. There was little specific discussion about CCPA.

When asked whether any of the companies would exit Europe or California because of the new laws, they all said no. One senator said that it appears that the “devil is in the details” when it comes to supporting a new regulation. When asked which provisions of the GDPR and CCPA should be part of a U.S. law, there was no response.

Given the time constraints of the hearing, the witnesses did not go into specific detail with respect to how personal data should be defined or what constitutes the sale or disclosure or personal data.

There will be at least one more hearing before the Senate committee, which will include testimony from Alastair Mactaggart, the California real estate developer who funded efforts behind the proposed ballot initiative that led to the CCPA, and Andrea Jelinek, the EU’s chief regulator for the GDPR and head of the Austrian Data Protection Authority.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.


About this Author

Katherine Armstrong, Drinker Biddle Law Firm, Washington DC, Data Privacy Attorney

Katherine E. Armstrong is counsel in the firm’s Government & Regulatory Affairs Practice Group where she focuses her practice on data privacy issues, including law enforcement investigations, and research and analysis of big data information practices including data broker issues.

Katherine has more than 30 years of consumer protection experience at the Federal Trade Commission (FTC), where she served in a variety of roles, including most recently as a Senior Attorney in the Division of Privacy and Identity Protection.  In the Division of...