State Privacy Measures Limp Forward in California, Washington Legislatures

A Washington state privacy bill lived to see another day after a House fiscal panel overcame process concerns and agreed Tuesday to advance SB-5376 to the Rules Committee while striking the bill’s actual policy and leaving only the title and statement of intent. The bill appeared on death’s door earlier that day (see 1904090072).

“Keep the bill moving,” Jackson urged California senators. The chair sees an “enormous amount of effort” to kill the bill, but wants to accommodate concerns of those interested in engaging. "The CCPA as it currently stands is a first step" but “is not enforceable in its current form,” said Jackson. “Self-regulation can no longer be the model,” she said. “If privacy is incompatible with your business model, then it is time to innovate.”

Some senators said they weren’t sure they were ready to vote without more indication of how the bill would look at the end of the process. “I don't know what I'm voting on here,” complained Sen. Henry Stern (D). “I don’t understand the rush.” Saying it’s too complicated “is not an answer,” replied Jackson.

Senators from both parties raised concerns about adding a private right of action to CCPA. "This is red meat for trial lawyers,” said Vice Chair Andreas Borgeas (R). "This is going to allow for a ravenous frenzy.” Sen. Ben Allen (D) raised public policy concerns because he said not giving a private right was a big reason legislators reached a deal last year on CCPA. California could give the AG more resources if he doesn’t have enough, Allen said. Caballero said she wants to make sure CCPA and enforcement don’t create uncertainty that chases away startups and small businesses.

Consumer privacy's a critical issue needing sufficient enforcement, countered Sen. Bill Monning (D). Legislators should give weight to Becerra’s suggestion of a private right of action if he’s saying his office won’t be able to enforce CCPA on its own, he said. Lawmakers could shape the private right of action to avoid problems, for example, by categorizing types of breaches and limiting remedies, Monning added.

The AG’s bill would encourage "thousands of trial attorneys to test businesses' ability to perfectly comply with the complexities of this new law,” warned California Chamber of Commerce Policy Advocate Sarah Boot. “This will be strict liability, with no proof of injury, even for reasonable differences in interpretation of a law that can be vague and ambiguous.” Don’t expose businesses that want to comply to “ruinous class actions,” said Perkins Coie privacy lawyer Dominique Shelton Leipzig. Other industry opponents included TechNet, the Internet Association, CompTIA, CTIA, Entertainment Software Association, California Cable Telecommunications Association and toy, financial and advertising trade groups.

Becerra's overseeing a rulemaking to implement CCPA that has attracted comments from many of the same industries (see 1904020075). The Assembly Privacy and Consumer Protection Committee plans an April 23 hearing on AB-1760, proposing CCPA tweaks supported by privacy advocates (see 1902270037).

Washington Bill Survives

Washington lawmakers voted 19-14 to give its privacy bill a second lease on life despite process concerns raised by Republicans. Prospects looked grim until the House Appropriations Committee's decision Tuesday to return from adjournment for a 5:30 p.m. PDT meeting to beat a legislative deadline to get the measure out of fiscal committee. The panel voted 19-13 against an amendment by Rep. Drew Stokesbary (R) to restore the bill to the form that the Senate passed by nearly unanimous vote.

“Moving the bill out of committee before the deadline keeps it alive,” House Innovation, Technology and Economic Development Committee Chairman Zack Hudgins (D) wrote later in an email update. “It will proceed to the Rules committee while a balance and agreement are discussed.”

No single approach has found consensus, said Rep. Larry Springer (D) at the webcast hearing. He offered the striking amendment to buy time, he said. “Goodness knows we have tried. People have tried since last summer, and we are where we are, which is basically ground zero.” The bill will sit in Rules while stakeholders make a “last-ditch effort” to find agreement, he said.

“It makes absolutely zero sense” to the Republican caucus “to get rid of all that work that has gone on for 86 days … and start from scratch and think we have a possibility to do anything meaningful in the next five days,” said Stokesbary. He complained about having only two hours' notice of the evening vote. It’s not transparent to pass a bill with no content and hash out an agreement behind closed doors, said Rep. Michelle Caldier (R).

It's better than waiting until next year, said Chairman Timm Ormsby (D). “Were it not for this hearing, called maybe just two hours ago, there would be no prospects for getting any bill … substantive or otherwise to advance the issue of privacy in the state of Washington.”

Gov. Jay Inslee's (D) office and House Democrats planned to host privacy bill talks at 3 p.m. PDT Wednesday, Hudgins said in an email update. Invited are Hudgins, Springer, Stokesbary, Senate bill sponsor Reuven Carlyle (D), Rep. Drew Hansen (D), Rep. Vandana Slatter (D), Microsoft Government Affairs Director Irene Plenefisch, Amazon lobbyist Kim Clauson or Eileen Sullivan, Comcast Senior Director-State Government Affairs Rhonda Weaver and Association of Washington Business Government Affairs Director Bob Battles, said Hudgins.

It's "extremely concerning" Wednesday's talks include no consumer privacy groups, emailed American Civil Liberties Union Washington Technology and Liberty Project Director Shankar Narayan. "The latest, closed-door meeting reflects how broken the process around SB 5376 has been. While the bill is being touted to reflect the interests of a broad set of stakeholders, this latest update makes clear that only large corporations will be at the table while major decisions are being made around their privacy." The legislature "should halt this broken, backroom process and come back in the interim to have a real stakeholder conversation," he said.