The Election and National Privacy Legislation?

By Bob Perkins

October 29, 2020

While most of us involved with online advertising have looked with concern at the referendum on "CCPA version 2.0", we have taken comfort, believing a national privacy law is not happening.  Now, to quote the famous line from Jaws, "Just when you thought it was safe to go back in the water…" If the Democrats take the White House and the Senate, national privacy legislation will almost certainly pass in some form.

It isn’t that “most of us” are opposed to privacy legislation.  In fact, we all recognize the importance of putting the consumer first.  But, with the sunset of third-party cookies, the industry is already in flux. New privacy legislation is likely to add uncertainty to an industry already grappling with extraordinary change, and potentially add to the woes of conventional publishers.

In January 2019, just two years ago, it seemed the mood in Washington, DC was for the passage of such a bill.  The Brookings Institute wrote, “Congressional leaders in both parties have expressed an interest taking up privacy legislation and are doing serious work to that end. Republican Senator John Thune of South Dakota, who chaired the Senate Commerce Committee and now becomes the majority whip, led a pair of privacy hearings last fall which he opened by saying developing a privacy law ‘enjoys strong bipartisan support’ and ‘the question is no longer whether we need a federal law to protect consumers’ privacy. The question is what shape it should take.’ His view was echoed by committee members on both sides.”

Then we had Washington paralysis, impeachment, the disappearance of third-party cookies, and COVID. Well, just when you thought…

As a Democratic insider told me recently, "If Democrats win the Senate and the White House, a national privacy law will pass. If Democrats do away with the filibuster, the new law will impose restrictions on data use on par or more restrictive than CCPA. If the filibuster remains, then Democrats will negotiate a law that brings along a few Republicans so maybe a little less restrictive than CCPA or constructed in a way that is less punitive for its violation than would otherwise be the case."

The current ranking member of the Senate Commerce Subcommittee on Communications, Technology, Innovation, and the Internet is Sen. Brian Schatz D-HI, who is not up for reelection this year. In March 2017, Schatz opposed a change in FCC regulations saying, "If Senate Republicans were serious about solving the very real challenges surrounding data security and privacy, they would call for a debate that considers the roles and responsibilities of both the FCC and FTC and propose legislation that protects consumers while enabling innovation."

At the end of 2019, Schatz introduced the Data Care Act of 2019. Hence, there's reason to believe a change in the Senate majority and the White House will lead to first-of-its-kind national privacy law.

What will this mean for advertisers, web publishers, and the AdTech community? First, I believe the best guide is the CCPA: Review how your efforts to comply with the CCPA could be used nationally.

Second, most importantly, recognize that new legislation will almost certainly require dramatic changes in your business practices. You may be tempted to say, "CCPA did not turn out to be as onerous as everyone predicted." The COVID storm granted businesses an unexpected reprieve from scheduled CCPA enforcement. Lightning will not strike twice.

Bob Perkins is the Chief Operating Officer of BritePool and the former Chief Marketing Officer of Pizza Hut. Earlier in his career, Bob served as the Finance Director for the Republican National Committee.

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