The situation is … fluid: #waleg privacy legislation update, March 4 (late-night update)

Updated around 12:30 am, March 5, with a late-night update and typo and emoji fixes.

When we did our February 14 💘Update, Reps. Slatter and Berg’s ❓Foundational Data Privacy Act, HB 1850 ❓ was a potentially-promising replacement for Sen. Carlyle’s 👎🏽Bad Washington Privacy Act, SB 5062👎🏽. But that’s old news. After industry lobbyists claimed that❓HB 1850 ❓ would cause the sky to fall, Governor Inslee stepped in to help negotiate a “compromise,” resulting in a two-prong strategy.

Now, the ❓Foundational Data Privacy Act ❓ has been replaced by a striker* amendment ❌2SHB 1850 ❌, cutting out its regulatory aspects and reducing a new data privacy commission, with no transparency or public oversight, to enforce ⁉️S-…. /22 ⁉️ , an as-yet-unpublished striker amendment to 👎🏽SB 5062 👎🏽, funded by a new “annual fee”, also known as a 💲tax 💲. On Monday, two weeks after the deadline for the House to pass ❓ HB 1850 ❓, the House 💰Appropriations 💰 committee voted 17-16 to advance ❌ 2SHB 1850 ❌. After a brief stop in 📏 Rules 📏 , the House could vote on it as early as today, and there’s a Senate 💰 Ways & Means 💰 hearing scheduled for 9 am tomorrow.

Late-night update: the House didn’t vote on ❌2SHB 1850 ❌, and adjourned until Monday.  There were 106 CON and 0 PRO signins to the Ways & Means hearing, which got cancelled not long after the AG’s Office signed in CON.

Fans of civil rights, immigrant rights, workers rights, and civil liberties who have been fighting the 👎🏽 Bad Washington Privacy Act 👎🏽 for the last four years are less than thrilled with this “compromise”, since little to none of their feedback has been incorporated. Progressive activists who raised concerns with the lack of transparency and public oversight aren’t real happy either. Balanced against this, businesses don’t like the new “annual fee” aka 💲tax💲on businesses that ❌ 2SHB 1850 ❌ introduces. And tech lobbyists claim that the watered-down private right of action in ❌ 2SHB 1850 ❌  — which gives people the ability to sue once the governor-appointed commission finds that there’s been a violation that has caused “actual damages” — will still cause the sky to fall.

The House Appropriations committee nevertheless voted 17-16 to advance ❌ 2SHB 1850 ❌ during their February 28 executive session. Earlier in the session, questions from Rep. Pollet had confirmed that the bill as written allowed the governor-appointed commission to dismiss alleged violations in a secret hearing. Despite that, he and Rep. Bergquist were the only Democrats who voted no. Republicans all voted no, with Ranking Member Stokesbary citing the private right of action and the new tax, which as he pointed out hasn’t even been considered by the Finance committee. But Democrats have enough of a majority on the committee — and in the House and Senate as a whole — that they don’t need Republican votes to pass legislation.

It’s hard to know how much Rep. Hansen’s announcement earlier in the session that Consumer Reports was expected to support this legislation influenced the vote. Of course, people who have followed Washington privacy legislation closely over the years know that Consumer Reports has supported the  👎🏽 Bad Washington Privacy Act 👎🏽  since 2020. They also supported the 2021 version, citing its “strong enforcement” even though AG Ferguson has since said it would “eviscerate” Washingtonian’s current rights. But Rep. Hansen didn’t mention that in his announcements, instead telling his colleagues that Consumer Reports “tracks this kind of thing much more closely than anybody else.”  So Rep. Hansen and most of the Democrats on the committee legislators decided to pay more attention to Consumer Reports to what Washington state groups like CAIR Washington, Densho, Japanese American Citizens League (JACL) Seattle Chapter, La Resistencia, MAPS-AMEN (American Muslim Empowerment Network), People First Bellingham, and Poor People’s Campaign — all of whom opposed the bill.  Oh well.

❌ P2SHB 1850 ❌’s next stop is a House floor vote, probably today. A Senate 💰 Ways & Means 💰 hearing is scheduled for tomorrow, and an exec session on Monday.   If it advances, it goes to 📏 Rules 📏 and the Senate floor. It’s possible that ⁉️ S-…. /22 ⁉️ , the as-yet-unpublished amendment to 👎🏽 SB 5062 👎🏽, will then be attached to ❌ 2SHB 1850 ❌ . If so, Senate will vote on a hybrid 👎🏽 ❌SB 5062 / 2HB 1850 👎🏽.  If it passes the House gets to vote on whether to accept it. If that’s what the plan is, it’s a tricky way to avoid having any House hearings on 👎🏽 SB 5062 👎🏽, and put as much pressure as possible on House legistors to finally pass the 👎🏽 Bad Washington Privacy Act 👎🏽.

This is not how things are supposed to work.

Most bills had to pass the “originating chamber” by Febraury 15, which gives a little more time for all of this stuff. But ❓ HB 1850 ❓ and 👎🏽 SB 5062 👎🏽 have been classified as NTIB (“Necessary To Implement Big tech’s agenda”) so the usual deadlines don’t apply.** So neither the House or Senate 🏛 State Government 🏛 committees had hearings on the new government agency ❌ 2SHB 1850 ❌ creates, and the latest version of the fiscal note still doesn’t have any information about the revenue ❌ 2SHB 1850 ❌’s tax creates. And if the Senate sneakily creates a 👎🏽 ❌ SB 5062 / 2SHB 1850 👎🏽 ❌ hybrid, that means that Chair Hansen’s Civil Rights & Judiciary Committee won’t even have to hold another hearing to pretend to listen to the input from groups like CAIR Washington, Densho, Japanese American Citizens League (JACL) Seattle Chapter, La Resistencia, MAPS-AMEN (American Muslim Empowerment Network), People First Bellingham, and Poor People’s Campaign.

A cynic might wonder if big tech, 👎🏽 SB 5062 👎🏽’s primary sponsor, and the Governor engineered this situation to make it easy for them to press legislators to just pass something. Then again, legislators have been busy on a lot of other important legislation, so it’s probably been hard to find time to work out the details of this “compromise”. That’s probably why the haven’t yet published ⁉️ S-…. /22 ⁉️ yet, right? It’s not like they’d do that so they can share with tech lobbyists without letting anybody else see it!

Anyhow, supposedly there’s an agreement that they’ll only pass 👎🏽 SB 5062 👎🏽 and ❓ HB 1850 ❓ as a package (unless of course somebody had their fingers crossed). Adding to the complexity, late-session negotiations often tie the fate of multiple bills together. Last session, for example, there were reports that Sen. Carlyle tried to hold funding for eviction protection hostage in an attempt to force the House to pass the NTIB’ed 👎🏽 Bad Washington Privacy Act 👎🏽.

So it should be a wild and wacky last week of the session. Who knows what shenanigans we still have in store!

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Late-night update:

The House adjourned until Monday without voting on ❌ 2SHB 1850 ❌ and it was taken off the agenda for Saturday’s 💰 Ways & Means 💰  was taken off the agenda. There was not a lot of support for ❌ 2SHB 1850 ❌ — signins were 106 Con, 0 Pro, 0 Other.  Similarly 11 people signed up to testify CON, Tech Equity Coalition members as well as industry, leaving Consumer Reports is the only PRO group.  Awkward!    The near-unanimous negative feedback in the hearing may have have influenced the House’s decision not to bring it to the floor.

It’s still not over.  The House could still pass ❌ 2sHB 1850 ❌ on Monday and refer it, 💰 Ways & Means 💰 has a hearing Wednesday and could do a same-day exec, then 📏 Senate Rules 📏 would whisk it through.  Or the Senate could move  👎🏽 SB 5062 👎🏽 (on its own or by adopting  merging ⁉️ S-…. /22 ⁉️ with ❌ 2sHB 1850 ❌ as a striker thus creating a hybrid 👎🏽 ❌ ⁉️ SB 5062 / S-…. /22 ⁉️ / 2SHB 1850 ⁉️ ❌ 👎🏽  ) on Monday, 💰Appropriations 💰 could rubber-stamp it and 📏 House Rules 📏 could whisk it through and so on. 👎🏽 SB 5062 👎🏽 and ❌ 2sHB 1850 ❌ could also be involved in late-session negotiations although it is not clear how much leverage 👎🏽 SB 5062 👎🏽’s prime sponsor, Sen. Reuven Carlyle has.  We shall see.

Technically, Rep. Kloba’s 💜 HB 1433 💜, aka the 💜 People’s Privacy Act 💜,  could still pass this session —  for example by being introduced on the Senate floor as a striker replacing👎🏽 SB 5062 👎🏽 then getting rubber-stamped in 💰Appropriations 💰, whisked through 📏 House Rules 📏  etc etc.   Admittedly it’s a long shot for this session but it points to a good way of thinking about a potential long-term direction: an  improved 💜 People’s Privacy Act 2.0 💜 plus an improved 💜 Foundational Data Privacy Act 2.0 💜 , both incorporating ideas from the other “third wave” legislation like the 💜 Massachusetts Information Privacy Act 💜  and the 💜 New York Privacy Act 💜.  Once again, we shall see!

Continued in It ain’t over till it’s over.

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* a “striker” amendment, sometimes called a strike-all or substitute, completely replaces the previous text of a bill.

** NTIB actually stands for “Necessary To Implement Budget”. It’s one of many procedural shenanigans leadership can use to ignore normal processes. Earlier this session there was speculation that Appropriations would advance ❓ HB 1850 ❓ as a “title-only bill”, another favorite, but at the end of the day they decided to rely on good ol’ NTIB instead.