Congress eyes new online privacy bills ahead of 2024 elections

WASHINGTON — The presidential election is a little more than five months away, but key Republicans and Democrats in Congress see a critical window to pass sweeping legislation to shield the online data of both children and adults from Big Tech companies.

“I believe that there’s a moment here where, on behalf of the American people, Congress needs to act,” House Energy and Commerce Committee Chair Cathy McMorris Rodgers, R-Wash., said in an interview on the steps of the Capitol.

“There’s a recognition, on behalf of protecting our kids online, in protecting all Americans, that we need to ensure that there are privacy rights in place … and that our identity is being protected online and that we’re in control of our data,” she said.

The Energy and Commerce subcommittee that oversees online data will take the first step in trying to advance the privacy legislation, holding a markup Thursday on the American Privacy Rights Act, broad legislation that includes privacy protections for kids and adults, as well as the Kids Online Safety Act.

The bills would head to the full Energy and Commerce Committee in June before possible votes on the House floor.

McMorris Rodgers, who is close to Speaker Mike Johnson, R-La., said Johnson has not committed to holding a floor vote on the privacy bill. But it’s expected to have strong bipartisan support given that she worked on it for months with a fellow powerful Washington state lawmaker, Senate Commerce Committee Chair Maria Cantwell, a Democrat.

Listen to McMorris Rodgers’ interview on the “Chuck Toddcast” here.

A revised draft bill was announced this week to address critics’ concerns.

The American Privacy Rights Act would create national consumer data privacy rights and set federal standards for securing people’s data rather than have a patchwork of state laws. Among other things, the legislation would require companies to be clear about how they use people’s data and “give consumers the right to access, correct, delete, and export their data,” according to a bill summary. The bill would also limit how companies collect and use data and ban transferring certain data to third parties without consent.

The measure includes the bipartisan bill to protect kids’ and teens’ online data, known as COPPA 2.0.

“I see the American Privacy Rights Act as foundational to protecting kids online, foundational to protecting our individual identity online,” McMorris Rodgers said.

The bipartisan privacy bill is gathering momentum just weeks after McMorris Rodgers and Cantwell reached a compromise on legislation that forces TikTok’s Chinese owner, ByteDance, to sell the popular video-sharing app or face a ban in the U.S. President Joe Biden signed the TikTok bill into law as part of a larger national security package.

Passing the privacy package would be a huge legislative win for McMorris Rodgers, who is retiring after nearly two decades in Congress. And some lawmakers believe the pair of chairwomen can build on their TikTok success, even though the election is in full swing and partisan attacks are flying on Capitol Hill and the campaign trail.

I like them both; they’re both really competent,” said Sen. Peter Welch, D-Vt., a former House member who has worked with both on their respective committees. 

“An election year can be seen two ways: a reason not to [act] and a compelling reason to act. People care about their privacy; it’s a huge issue, and they care about us standing up to tech to protect them,” Welch added. “So I think it’s good election-year politics for both parties.”

Sen. Todd Young, R-Ind., another Commerce Committee member, said that he is still reviewing the bill but that he “conceptually” backs comprehensive national data privacy legislation.

“I think there may be a window of opportunity,” Young said in an interview. “This obviously is a challenging issue, which is why it’s taken a number of years, without resolution, to come up with a national standard.

“But I think between our continuing U.S.-China competition and the recent legislative successes we’ve had on that front and the emergence of a veritable AI revolution,” he said, “those two things could create some renewed enthusiasm on this issue.”

During the push to reauthorize the Federal Aviation Administration this month, Democrats and Republicans on the Senate Commerce Committee huddled on the chamber floor and discussed ways to move the privacy package forward, said Sen. Ben Ray Lujan, D-N.M., who took part in the talks.

“I believe there is room and there is momentum and support to get this done before the end of the calendar year,” Lujan said.

Not all House and Senate commerce committee members are on board yet. Ted Cruz of Texas, the top Republican on the Senate Commerce Committee, is reviewing the updated legislation; he pointed to his statement last month in response to a first draft bill revealed in April: “I cannot support any data privacy bill that empowers trial lawyers, strengthens Big Tech by imposing crushing new regulatory costs on upstart competitors or gives unprecedented power to the FTC to become referees of internet speech and DEI compliance.”

“DEI” is the initialism for “diversity, equity and inclusion” measures.

And Rep. Anna Eshoo, D-Calif., who represents parts of Silicon Valley, sent a memo to Cantwell detailing concerns about the April draft legislation. Eshoo does not want federal law to pre-empt stricter state privacy laws, like those in California. And in a post-Dobbs ruling world, in which the Supreme Court struck down the federal right to abortion, Eshoo wants to eliminate any potential loopholes in the legislation that could expose women’s reproductive health data. Her team is still reviewing the new version of the bill.

“I scrubbed the draft, went through it, spoke to experts, and I sent it to the chair and ranking member, as well as any member that asked me what I thought,” Eshoo said Wednesday.