On Tuesday, February 28^th CA Attorney General Bonta made his stance on federal preemption crystal clear. The American Data Privacy and Protection Act has introduced questions about preemption, especially in California where the privacy law is the strictest to exist so far. While the ADPPA is still in limbo, it has renewed interest and the potential for long-term viability with material benefits. There is a huge benefit to uniform national law, especially if it has sufficient consumer protection and co-enforcement with state bodies like the CPPA, but only time will tell if the ADPPA advances.

California requests that Congress empower states to offer extra protections in response to evolving technology and data privacy protection practices. “There is no doubt that stronger federal action is needed to protect the privacy of Americans, but these actions must not preempt existing protections in place,” said California Attorney General Rob Bonta. “California is at the forefront of privacy in response to quickly changing technology. We urge Congress not to undercut the important protections that have been established through efforts by the states. Any federal law should set the floor, not the ceiling for privacy law,” AG Bonta said. In opposition to AG Bonta’s statement, there is an evident advantage to states being more nimble in adjustments to consumer protection needs as they arise.

How Did We Get Here?

The lack of federal legislation has given states the opportunity to propose their own laws, but a federal law would provide clarity nationwide. However, some privacy advocates and officials like AG Bonta see it as weakening established laws and assert that it doesn’t provide adequate consumer protection. Governor Gavin Newsom echoed AG Bonta’s sentiments saying, “National data privacy laws passed by Congress should strengthen, not weaken our existing laws here in California. As personal data is routinely bought and sold it is critical that consumers have the ability to consent to the sharing of this information…”

Ashkan Soltani, Executive Director of the CPPA, drove the lack of support for preemption point home stating, “Federal privacy protections cannot come at the expense of Californians and residents of other states that have adopted innovative privacy protections.” The letter from California officials came just in time for the House Energy & Commerce Committee’s hearing on March 1^st, which was anticipated to be an opportunity for the reintroduction of ADPPA.

Click here to read our blog on the House Energy & Commerce Committee’s hearing.

Within the letter, AG Bonta, Governor Newsom, and Soltani asked for the following amendments to ADPPA:

• Allow states to respond to changes in technology and data collection practices to allow rigorous enforcement in those areas most affecting residents; and
• Ensure that the ADPPA is passed without a preemption clause in order to protect critical data privacy protections in state law and preserve California’s authority to establish and enforce those protections.

As ADPPA continues to transform and come closer to fruition, we may see more states and officials offer similar stances to California’s call to limit preemption.