Congress' Tech Gap Isn't the Only Hurdle to a National Data Privacy Law
Congress' tech savvy or lack thereof isn't the pressing issue stopping a national data privacy law in the U.S., data privacy observers say. Instead, lawmakers are taking a methodical approach to a bill that would reshape private industry.
September 27, 2019 at 10:30 AM
4 minute read
As the nation's first substantive data privacy law is set to go into effect on Jan. 1, 2020, in California, it may take a while for a similar law to be enacted country-wide.
U.S. Rep. Suzan DelBene, D-Washington, and sponsor of the Information Transparency and Personal Data Control Act, said it's unlikely Congress will take action on a federal data privacy law this year, according to MeriTalk.
"It's not a partisan issue, but I do think folks are wary of some of these technology issues in terms of not understanding them well," DelBene said at a Forum Global Data Privacy conference.
However, DelBene's sentiments aren't shared by all. Data privacy lawyers said a tech gap isn't preventing Congress from implementing a national data privacy law. Instead, they noted the broad impact of a potential law requires lawmakers to fully consider what to include in a bill.
Is the technology gap causing a slow down? "I think it's a minor factor when you look at everything else members have to consider if they are passing a large data protection law that preempts state law," said Clay Heil, the D.C.-based co-founder and principal of Ice Miller Strategies. "There's a lot of concerns about what it would look like, who would be included and that would take Congress a while to figure out and find a consensus on."
Still, some Democratic presidential candidates and members of Congress have called for reestablishing the Office of Technology Assessment, which from 1972 to 1995 provided Congress with information regarding new and evolving technologies and their impact in order to strengthen lawmakers' tech understanding.
Jessica Lee, co-chair of Loeb & Loeb's privacy, security and data innovations, said restoring an objective, nonpartisan agency to explain technology would be useful.
"I think that's a great idea, to whatever extent it is possible in a neutral, bias-free environment," she said.
Lee noted because a federal data privacy law would have significant impact on certain industries, it requires significant thought about potential consequences and should be flexible to new technology.
Still, no one expects lawmakers to become tech experts before they can draft and pass a data privacy bill.
"It's not because the Congress is ignorant; it is very complex. But I also don't think you necessarily need to understand the technology to put down a framework for data privacy," said Cynthia Cole, special counsel at Baker Botts.
To Heil, finalizing a bill comes down to striking a bipartisan agreement about a legislation that impacts all businesses, which could take time.
"I think it gets back to what do you include in a bill. Do you make it a [General Data Protection Regulation] framework? Do you copy what California has done? Who should be included in a data protection law, what type of industries and then do you include a private right of action? All of those are major issues depending on what choices you make that has effects on private business."
But although it's unlikely Congress will move forward on a national data law this year, Heil agrees with Representative DelBene that a data privacy law isn't a partisan issue, and he said it wouldn't be too hot for lawmakers to debate during 2020, a presidential election year.
"I don't see it as something that can't be done in an election year," he said. "But if there's an impeachment hearing in the House that will certainly slow down all legislation."
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