Rep. Eshoo Expresses Concerns that New Privacy Bill Won’t Protect Californians or Abortion-Seekers

July 20, 2022
Press Release

WASHINGTON, D.C. – Energy and Commerce Health Subcommittee Chairwoman Anna G. Eshoo (CA-18) delivered the following remarks today at a full Committee markup of the American Data Privacy and Protection Act:

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California has the best privacy protections in the country.

Californians have certain inalienable rights to access their personal information, delete that information, and stop the sale of that information.

They can opt out of automated decision making and have the ability to limit the use of sensitive information.

California has an expert agency dedicated to protecting the privacy and data of the people.

I’m concerned that the bill before us would threaten California’s privacy rights and protections. 

If the objective of the federal bill is to protect the privacy of all Americans, it must first address three major shortcomings:

First, it must preserve the protections already enshrined in state law, including California’s.

While I’m sensitive to industry concerns that we don’t create a patchwork system of regulations, Congress has historically addressed this by allowing states to enact stronger protections when practicable and compatible. 

Law after revered federal law has wrestled with the issue of state versus federal protections and found a way to protect state progress. 

For example in the area of data protection, HIPAA does not override state laws that provide individuals with greater rights to their health information. In the area of civil rights, the Civil Rights Act does not operate to the exclusion of state laws on the same subject matter. Even in recent history of our Committee, we wrestled with preservation of state regulatory authority, including under the Toxic Substances Control Act (TSCA). 

Preservation of state-level protections and authority are neither a new issue or one that can’t be solved. 

The legislation should take head on the new world women are living in since June 24th the date of the disastrous Dobbs decision, which stripped the rights of women in our nation and potentially criminalized routine health care procedures.

The bill before us has a major loophole that could allow law enforcement to access private data to go after women. For example, under this bill, a sinister prosecutor in a state that criminalizes abortion could use against women their intimate data from search histories or from reproductive health apps.  That loophole must be addressed.

Third, the federal bill should build upon, rather than diminish, state-level enforcement activities.

The rights that Americans enjoy are empty without proper enforcement of those rights. 

California has an expert agency whose sole purpose is to ensure California consumers are protected from the exploitation and misuse of their personal information. 

It has the authority to issue rules, audit businesses, and levy fines.

This federal bill would compromise California’s  state agencies’ ability to enforce the law by creating ambiguity over the state agency’s authority to defend Californians’ constitutional right to privacy. It would also place major enforcement responsibilities on the historically under-resourced FTC. 

Others who have these concerns are California’s governor, the California Attorney General, and the California Privacy Protection Agency.

On the issue of enforcement, nine other Attorneys General agree with me so well, including those from Illinois, Washington State, New Jersey, Connecticut, Maine, Massachusetts, Nevada, New Mexico, and New York. 

I ask unanimous consent to enter into the record letters from the Governor of California, the state Attorneys General, and the California Privacy Protection Agency.

I recognize that this law would be an improvement for much of the country, but I can’t say the same for my constituents and all Californians.

Thank you Mr. Chairman. I yield back.

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