How Congress can take action on strengthening consumer privacy

The impeachment inquiry of President Trump seems to be sucking the oxygen out of Capitol Hill, with prospects for comprehensive federal privacy legislation now looking dim before the 2020 election. Yet that does not mean that all attention to this important public policy concern need be deferred. The pause actually creates an opportunity for a timely alternative that could help the legislative process in the interim. A simple bill to create a National Commission on Consumer Privacy could explore this area with breadth and depth, while building necessary bipartisan consensus for any legislation that may develop down the road.

Commissions such as this must be established formally by Congress, and they have served our country well in providing independent advice and making recommendations for changes in public policy based on expert research, data analysis, and information gained through onsite visits. With consumer privacy top of mind among lawmakers, regulators, businesses, and consumer protection groups, such a commission would be invaluable as an efficient and effective means to explore the issues raised by the Business Roundtable executives, along with others to be added.

As the Congressional Research Service itself has noted, “Throughout American history, Congress has found commissions to be useful tools in the legislative process, and legislators continue to use them today.” More than 100 commissions have been established during the past 30 years, with recent positive examples such as the Creating Options for Veterans Expedited Recovery Commission, the National Commission on Hunger, and the Commission to Eliminate Child Abuse and Neglect Fatalities.

Having a commission before the sausage factory of actual legislation is opened up would provide a highly visible national forum for consumer privacy that marshals more expertise than may be readily available to existing staff in Congress, and enable greater depth than might be practical for lawmakers facing the realities of multitasking on steroids. Commissions historically have been nonpartisan or bipartisan.

This means that if organized with care, such a commission could make its findings and recommendations more likely to be accepted by the public and embodied in legislation that could be signed into law. Congress would have a sense of ownership from day one, since commission appointees would be selected in part or whole by lawmakers.

There are enough cynics in Washington who would view this proposal as creating just another mini bureaucracy to minimize the chances that anything will really be accomplished. After all, some would argue that if Congress needs to make tough choices regarding consumer privacy legislation, it would be better to do that than establish a commission that it could later disavow in the interest of blame avoidance.

But on balance, and given the impeachment inquiry, a commission on consumer privacy can be designed to be the locomotive for a train already in motion rather than a sidecar that may derail greater oversight. There is no cookie cutter approach for what is needed to create a useful commission, but enabling legislation should be prioritized over moving swiftly to draft, debate, revise, and reconcile actual bills.

The mandate of such a commission and its duties and powers, its membership structure and appointment scheme, and termination date for reporting back to Congress are the obvious places to start. Field hearings by the commission around the country would be especially useful to authorize, since they would enable the commission to hear from diverse stakeholders and generate political capital for the challenging legislative battle that consumer privacy will almost certainly trigger.

A National Commission on Consumer Privacy is a practical measure. This call to action should be well received both in the House and the Senate, and across the political aisle, since Republicans and Democrats alike are keenly interested in exploring workable legislative options.

Stuart Brotman is a former government official and fellow in digital privacy policy issues with the Science and Technology Innovation Program at the Woodrow Wilson International Center for Scholars based in Washington.