To the WA Congressional delegation: thank you for not passing ADPPA this session – and we look forward to working with you on privacy in 2023

A letter sent by over two dozen Washington residents, December 27, 2022

Dear Senator Murray, Senator Cantwell, and Ms. DelBene, Mr. Larsen, Ms. Herrera Beutler, Mr. Newhouse, Ms. McMorris Rodgers, Mr. Kilmer, Ms. Jayapal, Ms. Schrier, Mr. Smith and Ms. Strickland,

Re: Washingtonians thank you for not passing ADPPA this session – and look forward to working with you on privacy in 2023

We are Washington State privacy advocates who have met and discussed privacy legislation with you and/or your staff over the last several years. Thank you for the hard work you have put into this critical topic, and we greatly appreciate that you did not attach the American Data Privacy and Protection Act, ADPPA, to the Omnibus bill. In our state legislative battles over privacy, big tech tried to use compressed time frames to advance very weak privacy legislation, so we were concerned when we heard rumors that ADPPA might be attached as is to the Omnibus bill without taking the time to hear our concerns and make the needed amendments.

Those of us working for strong privacy and civil rights protections in Washington have continued to build our power, and have an opportunity to pass strong state privacy legislation in 2023.  In its current form, ADPPA’s sweeping preemption language would be an anomaly for federal privacy legislation and potentially harm Washington residents’ privacy rights. Many existing federal privacy laws allow the states to adopt stronger laws. Examples include: the Health Information Portability and Accountability Act, HIPAA, the Gramm Leach Bliley Act, GLBA, and the Fair Credit Reporting Act, FCRA, all contain language that allows the states to adopt stronger protections. Similarly, the Telephone Consumer Protection Act, TCPA, and the Video Privacy Protection Act, VPPA, allow for stronger state laws. ADPPA’s preemption language is especially concerning given the rate at which technology continues to advance and evolve.

It is important that our Washington delegation understand why Washingtonians oppose the ADPPA. We write to draw your attention to several letters opposing the ADPPA as is, with multiple parties calling for significant revisions prior to passage of federal privacy legislation:

  1. National Organizations oppose ADPPA as is and urge provisions be strengthened:
  • Electronic Frontier Foundation, EFF, 6.13.22 letter: EFF Urges Congress to Strengthen the ADPPA , with recommendations making it non-preemptive; strengthening the private right of action, removing exemptions; prohibiting “pay for privacy” schemes; and providing stronger safeguards by making the bill fully opt-in and strengthening other protections.
  • ACLU 7.18.22 letter: ACLU Letter to House Energy and Commerce Committee on ADPPA identifying provisions that undermine their impact or otherwise fail to advance consumer privacy: a private right of action hamstrung by numerous deficits; obligations on the FTC to spend scarce resources developing compliance materials for individual companies rather than engaging in robust rulemaking and enforcement; “pay-for-privacy” rules that allow companies to withhold services or charge additional fees to consumers who exercise their rights; problematic exceptions for government-affiliated entities and web scraping that undermine the ADPPA’s broad scope; and preemption language that prevents states from enforcing existing protections and complementing federal lawmakers and regulators as they continue to address this complex and rapidly-changing topic into the future. (american_data_privacy_protection_act_0.pdf)
  1. Ten States – California, Connecticut, Illinois, Maine, Massachusetts, Nevada, New Jersey, New Mexico, New York, and Washington – Attorney General – call for federal privacy protections that maintain strong state oversight and enforcement capabilities
  1. Washington State Constituents: please only advance the ADPPA if it is significantly strengthened

Privacy rights should not come at the expense of existing rights. This is particularly important in an era in which Roe v. Wade has been overruled. Today more than ever, it is important that states be able to build on their existing laws and allow their voters to seek out the additional protections they require. As we have learned from environmental legislation, states need the power to address their individual needs. Effective federal legislation establishes a floor, not a ceiling. We urge you to address and resolve these concerns identified by organizations, attorneys general and your constituents during committee markup next session, and to develop a federal privacy bill that provides Americans with the much-overdue protections they expect and deserve.

Thank you for your service, and we look forward to continuing to work with you in 2023. Wishing you, your families and staff a joyous holiday season.

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