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The Washington Post Has it Right – Congress Must Pass Privacy Legislation

May 17, 2021

In its Sunday, May 9 edition, the Washington Post carried an editorial stating that, “Congress ran out of excuses for its inability to pass a privacy law years ago,” and called on it to act to pass a federal privacy law. It cited the support from leading members of Congress (including Reps. Jan Schakowsky (D-IL), Gus Bilirakis (R-FL) and Sen. Richard Blumenthal (D-CT)) for their public support the week prior of privacy legislation to be enacted by the end of the current Congress. The editorial also cited the action taken by numerous states, including California and Virginia, to fill the vacuum of Congressional inaction, as well as noted the stumbling blocks that have tripped up a federal law in the past.

ANA has long supported a comprehensive federal privacy law that sets a clear national standard for online data use and consumer protection. In fact, we are one of the founders of Privacy for America (PFA), which is actively working for federal legislation that clearly delineates unacceptable data practices that could lead to consumer harm, while preserving the benefit to consumers of an ad-supported free internet that comes from the responsible use of data. PFA has set forth a list of comprehensive policy principles as well as draft privacy legislation.  

We don’t exactly see eye-to-eye with the Post’s editorial board on some of the key particulars of a federal privacy law, however. In a letter to the editor that has now run in the Post, we note that a partial federal preemption of state laws would be ineffective, allowing for inconsistent state privacy laws that would be highly disruptive. The need for one clear, concise, and comprehensive national standard is important for both business and consumers. Any patchwork of conflicting state regulations would create a logistical nightmare for businesses operating on a national scale and serious public confusion.  

We also disagree with the Post’s editorial board regarding the need for a private right of action in the privacy arena. The editorial, in a search for a possible compromise middle ground, suggests that private rights of action should be limited to “egregious violations” or “a higher bar for violations.” Unfortunately, experience has shown that private rights of action often lead to the courts being flooded with frivolous lawsuits and having to determine what is an “egregious violation” on a case-by-case basis in private civil litigation; allowing this would almost certainly lead to inconsistent decisions that will be expensive and highly disruptive. Private rights of action do little to protect consumers from actual harmful practices, while imposing huge costs on business. Privacy for America instead is fighting for clear delineation of privacy harms and enhanced FTC enforcement power to go after bad actors. We believe explicitly delineating acceptable versus unacceptable privacy practices with a more effective “cop on the beat” will best protect consumers.

Ultimately, though, we agree with the Washington Post – now is the time for federal privacy legislation.

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