Congress must act now to pass a bipartisan federal privacy law

The future of a comprehensive federal privacy bill is in jeopardy. Indeed, while a patchwork of state laws is emerging, with two new bills passed at the state level so far this year, progress towards a comprehensive federal privacy bill has slowed. As the optimism that a bipartisan-minded president might broker a compromise fades, it is more clear by the day that the lack of movement towards a federal bill is a problem for corporations and consumers alike. 

This waning momentum leads many of us in the technology industry to ask the question: has privacy slipped down Congress’ list of priorities? 

The collapse of a movement towards compromise has been disheartening to watch. Last legislative session, serious bills were introduced by both Sens. Roger Wicker (R-Miss.) and Maria Cantwell (D-Wash.). It seemed that the debate had turned a corner. A couple of thorny issues remained; namely whether a narrow private right of action would appear in the final form of legislative text and if a compromise could be reached around preemption of existing state laws. Still, legislative hearings, bipartisan negotiations, and committee markups seemed to be in sight.

Of course, there are many other critical issues that require immediate congressional attention and are top priorities of the Biden administration — including the COVID response, resetting America’s foreign policy, infrastructure, health care, and racial justice. But the longer Congress waits to address the privacy problem, the more acute the issue becomes. As it is, new stories of data abuse are published weekly. And while privacy issues fester in the press and public consciousness, both Congress and the FTC seem poised to act faster on questions of competition. We need leadership to reset and restart the privacy debate.

Many observers seem to view the recent passage of additional state laws, like those in Virginia and Colorado, as further evidence of the inevitable march towards a federal bill. I beg to differ. The window for passing meaningful privacy reform is actually closing.

As more states pass comprehensive privacy laws, the incentive for members of Congress to act is curtailed. Members of Congress who hail from those states will have a harder time supporting a federal bill that — like most significant legislation — involves compromises. It is much harder to go back to your district and sell a compromise than it is to say you rejected a “weak” federal bill that threatened to take power away from your state.

Equally crippling, the chorus of support from the business community for a federal bill may fade. While a patchwork of state laws will harm business innovation and dynamism, companies with resources will nonetheless implement complex and costly state-by-state compliance programs. Upstarts and small businesses will struggle to handle the complicated regulatory landscape. After compliance becomes a moat that protects the dominance of Big Tech, why would Big Tech then support a federal bill that levels the playing field?

Now is the moment for Congress to act on privacy. The stage has been set by the press, serious legislative proposals are ready for debate, and the political environment is right for a compromise solution that could garner bipartisan support. The tech sector is rallying behind responsible data use practices and recognizes that self regulation is no longer enough. I believe that if the Senate reprioritized privacy this fall, a compromise bill could pass before next year’s midterms.

Foursquare has long called for a meaningful, comprehensive federal privacy law. The Privacy for America initiative has put forward a serious proposal to regulate harmful data use. We know that for Americans to trust the technology sector, they must be confident that someone is looking out for their interests. That’s why we believe that Congress passing and the FTC enforcing a bill is critical to restoring trust in the tech sector. There’s no time in recent memory when the possibility of a compromise has been better. When they return from the August recess, Congress must recommit to the hard work of passing bipartisan privacy reform.

Marc Ellenbogen is Chief Legal and Human Resources Officer at Foursquare. He is responsible for guidance regarding litigation risks, corporate initiatives, risk management, equity, employment, regulatory and all other legal and compliance matters at Foursquare.