Washington State Senate Rejects House Changes to Privacy Bill
As disagreement continues on enforcement and other sticky issues, Washington state’s privacy and facial recognition bills appeared to be headed to House-Senate conference Monday, with three days to work out differences. The privacy bill's fate is uncertain but odds for agreement might be better than last year, said some observers. The legislative session concludes Thursday at 11:59 p.m.
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The House voted 56-41 on a bipartisan basis Friday for SB-6281. Senators refused Monday to concur in House amendments. If the House declines to recede from amendments, “a conference committee will be requested where the amendments will be negotiated by a small group of members from each chamber before the March 12 deadline,” a House Democratic spokesperson emailed Monday. Talks continue, said a Senate Democratic spokesperson.
The House-amended bill allows individuals to bring lawsuits under the state’s Consumer Protection Act, unlike in the Senate bill (see 2002280070). Friday, the House removed a controversial section on private use of facial recognition, adding revised language to SB-6280 that had covered only public use when it was passed by the Senate (see 2003060054). Senators refused Saturday to concur with House amendments to SB-6280.
The Senate “seems” OK with “a separate facial recognition bill, and there are discussions going on to smooth out details between the House and Senate versions,” emailed House Innovation, Technology and Economic Development Committee Chairman Zack Hudgins (D) to us Monday. “There is not agreement about the consumer ability to enforce their rights under the bill.”
SB-6281 as passed by the House “shifts power back into the hands of consumers,” Rep. Shelley Kloba (D) said Saturday. Hudgins stated, “Our number one priority should be giving consumers the full ability to exercise their rights under the Washington Consumer Protection Act.” Senate Environment, Energy and Technology Committee Chairman Reuven Carlyle (D) has resisted House changes to the bill he authored. Carlyle didn’t comment Monday.
“The two sides are closer than they were last year” when the bill failed to pass the House, said Consumer Reports policy analyst Maureen Mahoney in a Monday interview. With the California Consumer Privacy Act in effect, it’s not as easy for companies to say they can’t provide privacy protections, she said. “It’s hard to argue Washington consumers shouldn’t have protections where California consumers do.”
Private right of action is “a big hurdle” to consensus, much like at the federal level, said Husch Blackwell's Malia Rogers, who represents businesses on privacy and other tech issues. “Should it pass, we’ll be surprised, and if it doesn’t pass ... a little less surprised.” Including a private right would increase risk and liability for businesses, the lawyer said. Carlyle indicated there might be a compromise allowing for a private right but with a higher legal threshold, she noted. Enforcement and facial recognition “have been the primary obstacles to passage” of Washington’s privacy bill in the last two sessions “and may once again result in the defeat of the bill,” she and other Husch Blackwell lawyers blogged Sunday. “Whether the Senate and House can reach a compromise ... remains uncertain.”
The House-amended bill “has many issues,” but “it presents a framework that we can build upon,” emailed American Civil Liberties Union-Washington Technology and Liberty Project Manager Jennifer Lee on Monday. “The bill that passed out of the Senate is unacceptable.” Lee praised the House for adding a private right of action and for treating facial recognition as a separate issue. CR supports those changes plus further limiting what companies can collect and removing pre-emption of local laws, Mahoney said.
Microsoft and other tech companies supported the Senate bill before the House made changes to enforcement. That company, TechNet and the Washington Technology Industry Association didn’t comment now.