Hill Republicans Warming Up to Private Right of Action Against Tech
Republicans have grown more comfortable with allowing consumers a private right of action to sue tech companies, said staffers for the Senate Commerce Committee and House Commerce Committee Tuesday during a panel at the Technology Policy Institute's Aspen Forum in Colorado, also livestreamed. A separate Aspen panel debated the future of social media content moderation and the potential for the U.S. Supreme Court to weigh in (see 2308220048).
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House Commerce Committee Chair Cathy McMorris Rodgers, R-Wash., didn’t support including a private right of action when entering privacy negotiations, said Tim Kurth, chief counsel for the House Innovation Subcommittee. She was “very opposed,” he said: She agreed to a limited private right of action in return for ensuring the bill would preempt state laws. Expect the reintroduction of the American Data Privacy and Protection Act (ADPPA) to include similar language, he said: Republicans want consumers to seek restitution through the FTC and state attorneys general first, but a private right of action can be a second, limited option.
There are Republicans who themselves want to sue tech companies over various issues, said Jamie Susskind, legislative director for Sen. Marsha Blackburn, R-Tenn., so they're “getting more comfortable with” a private right of action, though she noted this wasn’t included in the Kids Online Safety Act, which Blackburn introduced with Sen. Richard Blumenthal, D-Conn. Kurth said lawmakers want to avoid allowing a private right of action to benefit “bad faith” trial lawyers.
Kurth said he was heartened to hear Colorado AG Phil Weiser (D) inviting Congress to preempt state privacy laws with something stronger and more uniform. Companies are complying with the EU’s general data protection regulation and state laws, while the U.S. lacks federal uniformity, he said: “It’s not getting any easier.” Susskind also welcomed Weiser’s comments. She noted she has been having off-the-record conversations with state AG offices about where to draw the line on preemption.
It’s no coincidence FTC Chair Lina Khan announced an agency privacy rulemaking when the House Commerce Committee was marking up the ADPPA, said Kurth: Khan would “frankly like to preserve as much [FTC] authority as she can.” Congress wants to have a prescriptive law that’s very clear for the FTC and businesses so they know how to clearly protect consumers, he said.
Khan is trying to “wield the powers of the commission in a way that they were never intended to be wielded,” Duncan Rankin, senior adviser to Senate Commerce Committee ranking member Ted Cruz, R-Texas, said on a separate panel Monday. She created partisan divides within the building and fractured a functioning relationship between the regulator and industry, he said. That’s how Khan “sees things,” and it hurts consumers, he added. Employees are leaving the agency because she made the agency an “impossible” place to work, he said. Edgar Rivas, senior policy adviser to Senate Consumer Protection Subcommittee Chairman John Hickenlooper, D-Colo., said Congress should focus on advancing the FTC’s Republican nominees (see 2307280074) so all views can be represented at the commission. People can make similar claims about turnover under Republican administrations, he said: “Let’s get a fully seated FTC and have those dissenting, minority views represented.”