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After the midterm elections, the odds improve a little for a US data privacy law

Democratic control of the House of Representatives means consumer privacy legislation could be on the agenda in 2019.

US Capitol

The push for a federal privacy bill just got a small boost. 

/ Getty Images

Democratic control of the House of Representatives means there's a better chance Congress could pass a data privacy law. But don't expect any progress on the issue to be fast. 

On Tuesday, voters gave the Democrats control of the lower house of Congress in the hotly contested midterm elections. The results mean the party will take charge of important committees that oversee technology issues, such as the Energy and Commerce committee. Rep. Frank Pallone, a Democrat from New Jersey, is aiming to chair that committee.

Committee leaders often set the agenda for hearings, choosing what topics should be considered important. That's how tech leaders like Mark Zuckerberg end up testifying to Congress. In a statement on Wednesday, Pallone listed privacy and data security protection as priorities. That means you can expect more hearings involving tech leaders about the topics.  

Pallone isn't the only member of Congress set to push forward legislation regulating data privacy. On Nov. 1, Sen. Ron Wyden, a Democrat from Oregon, published a draft of proposed data privacy legislation. The draft suggested penalties of up to 20 years in prison for tech executives who mishandle data.

Rep. Suzan DelBene, a Democrat from Washington, introduced her own privacy legislation in September. Sen. Marsha Blackburn, a Republican from Tennessee, introduced a privacy bill in 2017, when she was still a member of the House. 

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The calls for a US data privacy bill have slowly gotten louder. Scandals, such as Cambridge Analytica's abuse of Facebook data, have amplified the calls. So have changes in other parts of the world, notably the European Union, where the comprehensive General Data Protection Regulation came into effect in May.  

Silicon Valley, which is typically resistant to regulations, has leaned into the call for privacy legislation. Apple CEO Tim Cook called for a US data privacy law in an October speech, while Google released a data privacy framework that called for better transparency and control over consumer information.

The acceptance of the tech industry is certainly helpful. But lawmakers still face challenges.

"You've seen some really important CEOs come forward and say they back federal privacy legislation, and you haven't seen that in a generation," said Jay Cline, PricewaterwaterhouseCoopers' Privacy Leader. Still, Cline said that if he were making an attempt to forecast the probability of a US federal privacy law, "we've tripled that index from 1 to 3 in the last 90 days, but that's on a 30 point scale."

The obstacles

Even before Election Day, any potential bill faced challenges. Privacy advocates warned that tech companies had only supported efforts to address the issue in order to influence any regulations.

Before any bill can get to a vote, lawmakers will have to agree on what they want for a data privacy bill. Proposed bills have faced criticism for being too strict on tech companies, while others were slammed for being too soft.

Last year, the ACLU criticized Blackburn's proposed legislation, pointing out that it would pre-empt state data privacy laws, essentially dismantling efforts at the local level.

Some of those state laws, such as California's Consumer Privacy Act and Vermont's Security Breach Notice Act, passed quickly. But the situation has been much different at the federal level.

"Congress hasn't even agreed on a federal data breach notification bill," Cline said.

Even if the House can pass proposed legislation, the bill would also have to pass through the Senate and the White House. Expect the details of any proposed data privacy legislation to be highly contested between a Democratic-controlled House and the Republican-controlled Senate.

During a press conference on Wednesday, President Donald Trump said he would work with Democrats to regulate social media companies like Facebook and Twitter, though he was referring to accusations that conservative voices are being censored.

Abigail Slater, Trump's tech adviser, said the Trump administration hasn't discussed privacy legislation with the House Commerce committee. She made the remarks during The Washington Post's Technology 202 event on Thursday.

"We've already indicated this willingness within the White House to work with Congress on privacy legislation," Slater said at the event. 

Slater joined the Trump administration after serving as general counsel for the Internet Association, a trade group representing tech giants like Google and Facebook. The Internet Association has proposed a framework for a privacy bill that includes a federal law that supersedes those at the state level.

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