Industry’s goal: take all state innovators and consumer cops off the beat.

I worry when I see the Energy and Commerce Committee considering a comprehensive bipartisan privacy bill. Last year at least some members insisted that the bill include some anti preemption proposals. Yet this year I’ve seen statements from the leadership of the committee that suggest that a “national standard” [aka state preemption] is more important than it was before — for  example, to let the stronger California law stand. The powerful special interests that want and have the influence needed to shape the bill the way they want it to be have been given carte blanche to do just that.

As chairwoman Cathy McMorris Rogers said “This draft stops an unworkable patchwork of state laws, ensures protections don’t change across state lines, and provides certainty to Americans and businesses.”

“Unworkable?” Yes, these sophisticated businesses can handle complicated tax laws, but gosh darn it can’t be bothered or befuddled by different consumer laws.

Not to be outdone with flowery pejorative rhetoric, Subcommittee on Innovation, Data, and Commerce Chair Gus Bilirakis (R-FL) delivered opening remarks at [a recent [4/27] ]Innovation, Data, and Commerce subcommittee hearing titled “Addressing America’s Data Privacy Shortfalls: How a National Standard Fills Gaps to Protect Americans’ Personal Information.”

He uses code words drawn right from industry’s preemption playbook: “confusing”and “patchwork” and “piecemeal.” Oh and “creates confusion,” too.”

“This only gets more complicated as fifty different states move toward their own privacy laws, meaning an increasingly complicated and confusing landscape for consumers and for business….His clients do business in every sector, and he will speak to compliance burdens that the patchwork of state laws has created. …Mr. Reed, with the App Association, will discuss how this piecemeal approach of state laws creates confusion for member companies.”

But do we lose? What do we lose when Congress takes control?? Well, here’s what I said about the preemptive efforts of the credit bureaus [the Big CRAs]-they’ve been fighting for preemption for over 30 years. After all, don’t you think they’ve done a fine job? My full testimony to the Financial Services Committee on credit scoring is here.

As I argue “Industry’s goal is to take state innovators and consumer cops off the credit bureau beat.”

“Critically, each federal reform was preceded by major accomplishments at the state level. A key part of my message today is that continued state leadership in all areas – from climate change to credit reporting and privacy and digital rights more broadly– is critical to the advancement of this nation’s policies to improve consumer welfare, health and safety and liberty.

Numerous states emulated California’s pioneering auto emissions rules, protecting the environment for us and future generations. As you know, those state rules are currently under administrative threat. The pioneering 2018 California Consumer Privacy Act is now under attack in the Commerce committees of both houses by a phalanx of powerful corporate interests led by Google, Facebook, Amazon and the telco/cable ISPs. If they win preemption of state laws, consumers and citizens lose, forever.

The big CRAs were early advocates of eliminating the right of states to protect their citizens. If the credit bureaus and banks had succeeded in 1992 in their brazen House effort to reverse the FCRA’s longstanding standard that the FCRA serve as a floor of protection, not a ceiling, and at that time 27 years ago successfully preempted all state laws related to credit reporting, we would not have nationwide free credit reports, we would not have access to our credit scores, we would not have identity theft protections, we would not have data breach notices, and we would not have the free nationwide credit freezes finally enacted in 2018. Congress only acts to protect consumers after a disaster (cue 2008 financial collapse) or after several states act first. Industry’s goal is to take state innovators and consumer cops off the credit bureau beat.”

Again, you can access my full testimony here. By the way Chairwoman Rogers and Chairman Bilirakis both used “patchwork” but perhaps forgot the additional code words as in: “crazy patchwork quilt.” But I’d use it this way:

“It would be crazy to preempt the states, after all, Congress only acts to protect consumers after a disaster (cue 2008 financial collapse) or after several states act first.”

And of course, don’t forget the code word “balkanized.”