With little congressional movement regarding federal privacy legislation apparent as 2020 begins, those hoping that a new law will be enacted this year are likely to be disappointed.
The external political realities of impeachment, the 2020 elections and no discernible push for it by the Trump administration suggest a scenario in which this issue will be kicked down the road for a new Congress (and perhaps a new administration) to consider.
But the recent enactment of another federal privacy law – the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (nicknamed TRACED) – offers some useful lessons about how a piece of privacy legislation can make it to the president’s desk.
First, despite the continuing rancor between Republicans and Democrats, TRACED demonstrated that it is possible to achieve broad support for privacy legislation.
The strong leadership shown by Rep. Frank Pallone Jr. (D-N.J.) and Sen. John Thune (R-S.D.) serves as a model for the type of bipartisan, bicameral work that will be needed if future privacy legislation is able to gain necessary momentum. TRACED passed with a 417-3 vote in the House and on a voice vote in the Senate. President Trump signed it into law late last month.
The second asset that TRACED exhibited is a laser-like approach to a pervasive, real-world privacy problem – unwanted robocalls – along with targeted solutions to deal with it directly. This narrower scope may be more effective in moving privacy legislation along, rather than starting from a premise that a new law needs to be “comprehensive” in order to be worthy.
Such a broad aspiration sounds good in theory, and may attract initial support and favorable press coverage. But it also may result in a legislative vehicle that is too cumbersome to manage. Inevitably, varying stakeholders will seek to add more to the legislation. That may ultimately doom enactment since too much weight attached to a legislative proposal can make it unpalatable to one or more interest groups.
TRACED avoided this obstacle by developing a good, albeit imperfect, approach that provides greater enforcement powers while also supporting phone company measures already under way to help identify and block robocalls more effectively.
Another important attribute of TRACED that is worthy of emulation is a recognition that enforcement can be a shared responsibility, in this case between the Federal Communications Commission and state attorneys general. Contrast this with the current jurisdictional quagmire that potential privacy legislation is confronting — namely, whether there needs to be federal preemption of state privacy enforcement to achieve a necessary level of uniformity that industry players say is a litmus test for their support.
Finally, TRACED is designed to keep Congress in the loop as the law rolls out, so that it can make adjustments in enforcement requirements and financial penalties based on how effective the new law will be in reducing unwanted robocalls. Call blocking technology also is expected to advance over time, which is another reason TRACED should not be considered as a one-and-done law. Rather, it is an important initial step in legislatively addressing this problem. (The FCC has been doing this for years without useful congressional guidance.) Going forward, privacy legislation should include a requirement of an annual report to Congress, with public availability. The dynamic nature of the digital marketplace demands no less.
TRACED does not provide an exhaustive view of the building blocks that would be useful to add for future privacy legislation so that it can move from its current stalemated status. The implementation of the California Consumer Privacy Act (CCPA), which became effective on January 1, may help create more pressure for a federal solution.
But unless Congress looks inward to how it can achieve its own legislative success in this area, the chances that federal privacy legislation will be enacted in 2020 seem small. TRACED offers several elements to an equation that seems essential for any such legislation to be enacted, whether in the 116th Congress or beyond.
Stuart N. Brotman is a fellow at the Woodrow Wilson International Center for Scholars in Washington, D.C. He is based in its science and technology innovation program, focusing on digital privacy policy issues.