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the Law and Legal System of the United States

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If a weak federal privacy law pre-empts state law, it would roll back the protections that Californians are supposed to get — and it would make it impossible for other states to set the bar even higher. That’s exactly what’s going on with privacy bills introduced by Senator Marco Rubio (the American Data Dissemination Act) and Senator Marsha Blackburn (the Balancing the Rights of Web Surfers Equally and Responsibly Act). Both offer weak privacy protections bundled with federal pre-emption. If passed, they would gut the California law. In the House, Representative Suzan DelBene’s Information Transparency and Personal Data Control Act also pre-empts state law, while offering a respectable amount of privacy protection, like a requirement for companies to secure opt-in consent before collecting user data. Still, even that bill lacks some rights that the California law provides.

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The Senate bills that take privacy seriously do not contain pre-emption clauses. Senator Catherine Cortez Masto’s DATA Privacy Act, for instance, bears similarities to the California law and to the G.D.P.R., as does Senator Ed Markey’s significantly more ambitious Privacy Bill of Rights Act. Although Ms. Cortez Masto’s bill does not create a private right of action — that is, the ability for consumers to sue tech companies for privacy violations — Mr. Markey’s does, and invalidates arbitration clauses that could otherwise shield companies from individual lawsuits. Consumer lawsuits are a hot-button issue — in the California law, the private right of action exists only in a limited form thanks in part to corporate lobbying. Most interestingly, Mr. Markey’s bill requires the creation of a public list of data brokers in the United States — third party companies who buy and sell your data.