Washington Privacy Act Dies in the House While California Continues to Consider Refinements to the CCPA

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After passing the Senate nearly unanimously, the Washington Privacy Act (SB 5376) has stalled in the House of Representatives. The bill failed to achieve passage out of committee by the April 17 deadline for consideration of bills originating in the opposite house, and was returned to the Senate on April 28. As a result, SB 5376 is unlikely to pass this year.

SB 5376 gained early support from Washington’s technology industry, which helped it achieve easy passage in the Senate. Upon reaching the House, however, the bill met with strong resistance from individual rights groups. The Washington ACLU announced that it would make privacy legislation a focus of the group’s 2019 legislative agenda, sponsoring legislation to place limitations on the use of automated decision-making systems employed by public agencies (see HB 1655 and SB 5527). The group opposed SB 5376 after the ACLU’s legislation failed to gain traction, arguing that exemptions in the bill would create loopholes that would render the legislation’s privacy protections toothless. Opponents also took issue with the fact that the bill lacked a private right of action, leaving enforcement authority exclusively with the Attorney General’s Office. Additionally, detractors worried that the bill’s protections for facial recognition technology were insufficient, noting that the use of facial recognition could lead to law enforcement inequities due to the fact that such technologies can have disparate results when applied to different racial and ethnic groups. Just a day before SB 5376 died in committee, the ACLU, the Electronic Frontier Foundation and four other civil liberty groups issued a joint statement opposing the legislation.

One of the bill’s primary supporters, Senator Carlyle (D-Seattle) took to Twitter to express his disappointment that the legislation failed to pass and his hope that the Legislature would adopt privacy legislation in 2020. It appears unlikely that any serious privacy legislation will be considered in Washington state before then.

While the Washington bill came to a halt, California Consumer Privacy Act (CCPA) amendment bills continued to make their way through the California Legislature. At California Senate Appropriations Committee (Appropriations Committee) hearings last week, two CCPA amendment bills, AB 25 and AB 874, which we previously reported on here, made their way through the Appropriations Committee to the consent calendar with unanimous support and are now up for a floor vote. If ultimately signed into law by the governor, AB 25 would carve employees out of the definition of “consumers” under the CCPA and AB 874 would refine the meanings of “personal information” and “publicly available” under the act.

Meanwhile, SB 561, a bill supported by California’s attorney general (AG), which we had previously reported about here and here, was placed in the Appropriations Committee’s suspense file. Bills with a significant financial impact are placed in this file so that the Appropriations Committee can consider their financial impact once they have a better sense of the fiscal year’s budget. The deadline for the Appropriations Committee to vote on whether SB 561 will make it out of the suspense file is May 17, 2019. However, the suspense file has a reputation of being a place where bills go to die. SB 561, which was previously approved by the California Senate Judiciary Committee on April 9, 2019, would, to the detriment of businesses, provide for a vast expansion of the CCPA’s private right of action. Currently, the CCPA only provides for a narrow private right of action for certain data breaches, and SB 561 would amend the CCPA to provide consumers a private right of action for any CCPA violations, greatly expanding the potential financial exposure of businesses under the sweeping privacy law. Moreover, among other amendments to the CCPA, SB 561 would eliminate businesses’ right to cure their violations of the CCPA before the California AG can seek civil penalties against them.

Five CCPA amendment bills are waiting to be heard by the Appropriations Committee: AB 846, AB 873, AB 981, AB 1146 and AB 1564, which were advanced to the Appropriations Committee from the California Assembly’s Committee on Privacy and Consumer Protection. For more information on the potential impact of these bills, see our post here. BakerHostetler will continue to monitor the progress of these bills and provide further updates.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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