California Consumer Privacy Act Emerges as Likely Model and “Floor” for Federal Privacy Law

March 15, 2019

Senate Judiciary Committee Ranking Member Diane Feinstein (D-CA) said in a hearing on consumer data privacy, “I will not support any federal legislation that weakens the California standard.”

Sen. Richard Blumenthal (D-CT) also stood behind the California law as a starting point for any federal bill.  He said:

"What I see now is a lot of good intentions that have the effect of undercutting what we have now [the California Consumer Privacy Act or "CCPA"] through preemption. I am helping to lead a group in the commerce committee involving a bipartisan core of support for adopting a law that regards California[’s law] as a floor—not a ceiling—in terms of privacy standards for both expectations of what the standard should be but also enforcement…. I feel strongly that we should build on [California’s law], and make it even stronger."

But how to make the CCPA stronger is unclear:  When asked by Sen. Blumenthal on how to strengthen the California law, Chairman of Californians for Privacy Alastair Mactaggart—who privately funded the campaign for the California law, co-wrote it, and negotiated its passage—said that, other than adding a whistleblower provision, “We got a deal that we really liked.”

Why it matters: The CCPA neglects to make a distinction between consumers and employers or workers, therefore creating ambiguity for employers with regard to HR-related data.  On the other hand, were enough congressional Democrats satisfied with the strength of a federal law, it is possible that preemption may be included in its provisions.  The question for employers would then be whether under those circumstances they prefer the law to cover HR data.