Brookings
Cameron F. Kerry

A Congress that begins with a government shutdown carrying over and a raft of subpoenas to the executive branch issued by incoming House committee chairs promises to be at least as polarized and partisan as its predecessor. Even so, legislators want to legislate, and will seek some opportunities for bipartisan agreement. One area where this may happen is federal legislation to protect personal information privacy.

Congressional leaders in both parties have expressed an interest taking up privacy legislation and are doing serious work to that end. Republican Senator John Thune of South Dakota, who chaired the Senate Commerce Committee and now becomes the majority whip, led a pair of privacy hearings last fall which he opened by saying developing a privacy law “enjoys strong bipartisan support” and “the question is no longer whether we need a federal law to protect consumers’ privacy. The question is what shape it should take.” His view was echoed by committee members on both sides.

His successor as committee chair, Republican Roger Wicker of Mississippi, has expressed support for “a federal law on the books by the end of 2019.” His incoming House counterpart, Democrat Frank Pallone of New Jersey, endorsed “comprehensive legislation” earlier in the year and, shortly after the election in November, announced that proposals for privacy and security will be part of the Democratic agenda.

So far the Senate has done the most visible work. Wicker along with Republican Jerry Moran of Kansas and Democrats Richard Blumenthal of Connecticut and Brian Schatz of Hawaii, all chairs or ranking member of relevant Commerce Committee subcommittees who are working on legislation, sent a joint letter to Commerce Secretary Wilbur Ross urging the administration to collaborate with Congress on privacy because national standards require congressional action.

Two senators have released drafts of bills intended to provoke discussion. Oregon Democrat Ron Wyden got an early jump with a draft Consumer Data Protection Act that caught attention with high-level corporate disclosure requirements similar to those in the Sarbanes-Oxley law, carrying a risk of criminal charges. Senator Schatz (joined by 15 Democrats) released a draft Data Care Act that would establish duties of “care, loyalty, and confidentiality” for online providers that handle personal data.

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