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WASHINGTON, D.C.  – U.S. Senator Deb Fischer (R-Neb.), a member of the Senate Commerce Committee, questioned The Honorable William Kovacic, a former chairman and commissioner of the Federal Trade Commission, about effective implementation of a national data privacy framework. Senator Fischer is an original cosponsor of the Setting an American Framework to Ensure Data Access, Transparency, and Accountability (SAFE DATA) Act to establish a nation standard for consumer data privacy and allow Americans more control over their personal data. This bill includes Senator Fischer’s bipartisan DETOUR Act, which would protect against deceptive and misleading online user interfaces.

Full Transcript:

Senator Fischer: Thank you, Mr. Chairman. The COVID-19 pandemic has been a monumental challenge from health care and economic perspectives. It also has further exposed vulnerabilities on a variety of related policies. Notably, the rollout of contact-tracing efforts has been difficult given the fragmented state of data privacy. I’ve heard from hundreds of Nebraskans worried about how their personal information will be protected. For this reason, I was proud to help introduce the COVID-19 Consumer Data Protection Act that Chairman Wicker led.  This important legislation also gives momentum to broader privacy efforts.

 Senator Fischer: Mr. Kovacic, in your testimony, you stressed the need for the coherent implementation of a data privacy framework – among federal agencies, and considering state authorities. Does the current lack of coherence create an imbalance between foreign regulators and American companies trying to compete in the global economy? Does it also affect our country’s innovative process?

Mr. Kovacic: The short answer, Senator, is that it does impede our efforts to work effectively in an international setting. Our state and federal regulators do work together, they cooperate in important ways, but that cooperation is not nearly as deep and complete as it could be. And the absence of the cooperation means that the conversation among the relevant participants is not as extensive. It means that we don’t draw upon the experience of the bodies like we might otherwise and it means that we don’t build a consensus across these bodies about what should be the content of our policies so that if you ask foreign observers, “What is US privacy law,” it’s very difficult for them to answer that question in less than many pages because it’s such a fragmented system. Where it exists, it can be very powerful, but it is not comprehensive and in order to give a good answer, you have an answer by reference to a welter of different decision-makers. So I do think that the lack of a more coherent framework for formulating policy and implementing it denies us an important level of coherence here in the United States, but it really gets in the way of our efforts to shape global standards and it causes us to be dismissed as not having an effective system.

Senator Fischer: So what I’m hearing from you is that not only is it difficult within the United States and I believe it’s going to become more and more fragmented if we do not step up soon and be able to work together on this. We are also basically being dismissed by foreign governments, by innovators, and companies overseas because we don’t have a policy. A real policy in place. Would you agree?  

Mr. Kovacic: I think that’s unmistakably correct. There is a chance, put it this way, if we do not adopt a national privacy law of our own, that reflects the deliberations of this committee, those who have thought about it a lot, we will get a national privacy policy, it will be called the GDPR, that will be it, we’ll have one. Supplemented by the CCPA, with all the thoughtful work that’s been done there. But do we want our national privacy policy to be the product of a decision made by a thoughtful foreign government, very thoughtful state but without the contribution of the national legislature to formulate our own distinctive collective judgement about these issues?

Senator Fischer: Thank you. I also was glad to join Chairman Wicker and other members of this committing in introducing the SAFE DATA Act last week. The bill would enhance the FTC’s central role in implementing and enforcing core privacy principles. Do you believe such clarification could contribute to our discussions in moving forward so we could have something done on the federal level?

Mr. Kovacic: I think it will give us a voice again in this international arena that we have not had in the way that we should. It’s a great step in the right direction.