In back-to-back hearings last week, the House and the Senate discussed what, if anything, Congress should do about online privacy.

Sounds fine—until you see who they invited. Congress should be seeking out multiple, diverse perspectives. But last week, both chambers largely invited industry advocates, eager to do the bidding of large tech companies, to the table. The testimony and responses from the industry representatives were predictable: lip service to the idea of strong federal consumer privacy legislation, but few specifics on what those protections should actually look like. These witnesses also continue to advocate for unwritten, vague federal preemption of existing state laws like California’s Consumer Privacy Act (CCPA) or Illinois’s Biometric Information Privacy Act (BIPA).

However, there were a few bright spots.

In the House

Consumer Protection Subcommittee Chair, Rep. Jan Schakowsky, kicked off Tuesday’s hearing by asserting that collection of personal information must come with responsibilities the tech companies:

This data isn’t being collected to give you the creeps. It’s being done to control market and make a profit… Without a comprehensive privacy law, the burden has fallen completely on consumers to protect themselves, and this has to end... A person should not need an advanced law degree to avoid being taken advantage of.

She also stated that federal legislation must allow aggressive enforcement mechanisms, and that it’s “important to equip regulators and enforcement with the tools and funding necessary to protect privacy,” including a private right of action for individual consumers.

Energy & Commerce Committee Chair, Rep. Frank Pallone, followed in his remarks by saying, “It is time for us to move past the old model that protects the companies using the data and not the people… some data maybe just shouldn't be collected at all.

We were happy that Brandi Collins-Dexter of Color of Change was able to explain the surprising ways data can be used against consumers. “Even data points that feel innocuous can be used as proxies for a protected class.”

In the Senate

Despite Commerce, Science, & Transportation Chair Sen. Roger Wicker calling for a “preemptive framework” in his opening remarks, the Committee's top Democrat, Sen. Maria Cantwell, said it's "disturbing" to see calls from Republican and tech industry leaders to override state privacy laws in any federal measure:

I find this effort somewhat disturbing that with all the litany of things, the privacy violations [we] just went through and as countries are grappling with this, that ... the first thing that people want to organize in D.C. is a preemption effort.

Sen. Amy Klobuchar likewise called out industry fearmongering about the difficulties of complying with a “patchwork” of state laws, and stood up for state leadership in privacy legislation:

The reason all the states are doing all of this is that we have done nothing here, and part of that is because the companies that you represent have been lobbying against legislation like this for years.

Later in the hearing Sen. Brian Schatz painted a picture of consent fatigue, why we can’t reasonably expect consumers to consent to every use of their data, especially when they have to click on “6-point font while they are on the bus.” We look forward to working with Sen. Schatz to make improvements to his information fiduciary bill as he prepares to reintroduce it this Congress.

In a panel dominated by industry, we were also happy to see respected academic Woodrow Hartzog defending user rights to privacy. In particular Hartzog pointed out the broad issues made worse by the “personal data industry complex,” especially for marginalized communities and communities of color: “We are only just beginning to see the human and societal cost of massive data platform dominance.”

Real Privacy

Despite these bright spots, the industry-heavy witness panels on these hearings were nothing but foxes guarding the henhouse. If Congress wants real privacy for all Americans, it cannot only hear industry’s advice on how to protect consumers. We already know that doesn’t work.

In response to outcry over these hearings’ industry-heavy witness panels, Senate Commerce Chairman Roger Wicker has announced that the committee does plan to hold additional hearings on consumer privacy and plans to invite consumer groups. That’s certainly good news for the future, but we are still concerned that Chairman Wicker and Chairman Pallone kicked off the new Congress without giving consumers a meaningful seat at the table.

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