Facebook, Google, Microsoft and IBM are some of the tech giants behind an incipient effort to secure a federal privacy law in the United States following the European Union's General Data Protection Regulation.
Big U.S. tech firms are launching a lobbying campaign to get Congress to enact a federal privacy law. Their motive? Stave off sweeping data privacy laws like the European Union’s General Data Protection Regulation or California’s own stateside attempt for internet privacy protections, The New York Times reported over the weekend.
But who are some of the lobbyists behind tech’s push to get a federal privacy law? One group leading the effort is the Information Technology Industry Council (ITI), a trade group that is also a political action committee. The council is funded by Intel Corp., Honeywell, Microsoft, Amazon.com Inc., Hewlett Packard Enterprise and Texas Instruments Inc., according to the nonprofit, nonpartisan and independent Center for Responsive Politics, at OpenSecrets.org.
ITI Council spokesman Jose Castaneda, when contacted by this publication on Tuesday, said the organization would not speak further on its lobbying efforts for a federal privacy law, but confirmed ITI’s participation in the legislative effort. Castaneda also said that no specific federal internet privacy legislation supported by the group had yet been introduced in Congress.
There are several privacy legislation proposals floating around Washington, however, that may be introduced in Congress after it returns from recess, another lobbyist familiar with the matter said. Pressure is building for a federal law because of global trade concerns as other countries enact laws modeled after the GDPR, including most recently Brazil. A variety of companies beyond the tech industry also are increasingly worried about a patchwork of state laws in the United States, because of the internet of things.
Of $840,000 spent by ITI on lobbying in 2018, consulting firm Mehlman Castagnetti Rosen & Thomas has received $80,000 in the first half of the year. This year, Mehlman Castagnetti lobbied for ITI on email privacy, the Electronic Communications Privacy Act reform bill H.R. 387; the tax cuts act; unspecified cybersecurity and privacy issues; NAFTA modernization; immigration and the Committee on Foreign Intelligence in the U.S. legislation, among others. The ITI also lists at least eight in-house lobbyists.
ITI has been involved in tech legislative efforts since at least 1998, when it was represented by Mayer Brown. Mehlman Castagnetti appears to have become its adviser in 2016, records indicate. Last year, ITI spent $160,000 with Mehlman Castagnetti, out of a total lobbying expenditure of $1.63 million, on matters such as the Email Privacy Act; a bill to update the ECPA; the Modernizing Government Technology Act, and a proposed reauthorization of the law that governs foreign intelligence surveillance in the United States. ITI filed reports stating that it lobbied the White House, both houses of Congress, the National Institute of Standards and Technology and many other agencies.
Facebook Inc., Alphabet Inc.’s Google, Microsoft and IBM also reportedly supported the effort to secure a federal privacy law. Facebook’s chief lobbyist in the United States is Joel Kaplan, former White House deputy chief of staff for policy for U.S. President George W. Bush. Karan Bhatia, a former partner at Wilmer Cutler Pickering Hale and Dorr, is head of policy for Google, arriving in June from General Electric. Google’s top Washington lobbyist is Susan Molinari, vice president of policy and public relations, and former Republican U.S. representative from Staten Island (1990-93) and former principal at Bracewell & Giuliani. Microsoft’s lobbyist is senior director of global government affairs John Galligan, Stephanie Peters (formerly a partner at Patton Boggs) is VP of Federal Government Affairs, as is Anne Gavin, and Matt Gelman is its general manager of congressional affairs.
A blog post by IBM’s chief lobbyist, vice president for government and regulatory affairs Christopher Padilla, former under-secretary for international trade within the U.S. Department of Commerce, in May suggested federal privacy regulation strategy was being floated by IBM at least as early as this spring. IBM did not respond to requests for an interview with Padilla.
Padilla wrote in the post titled “An American Approach to Data Privacy” on the company website, “IBM believes the United States should pursue a third way—one with a track record of success. Instead of government mandates, we believe a collaborative public-private approach, led by industry together with government, is the most feasible way to develop a framework of data privacy standards tailored to America’s needs.”
Padilla compared IBM’s suggested approach to the 2013 Obama administration executive order calling on the National Institute of Standards and Technology to collaborate with government, industry and academic groups to develop cybersecurity standards after legislation failed in Congress amid increasing cyberattacks. Padilla said in May that IBM was “bringing over 100 of our top leaders from across the country” to meet with members of Congress for the tenth year,” and we will be encouraging members to embrace this collaborative, public-private approach.”
Meanwhile, at Facebook, Kevin Martin, a Republican former chairman of the Federal Communications Commission, replaced Erin Egan this spring as the company’s head of U.S. public policy, as Egan focused on her role as chief privacy officer, according to Bloomberg LP news and other media. The move followed the tongue-lashing that CEO Mark Zuckerberg received at congressional hearings in April after the Cambridge Analytica data-sharing scandal broke.
Also this spring, Bloomberg reported that Amazon.com Inc. left D.C. powerhouses Akin Gump Strauss Hauer & Feld LLP and Squire Patton Boggs,who previously were leading the lobbying efforts for the company. Updated information in August shows that Akin Gump received a $30,000 contract in the second quarter after an $80,000 contract was listed as terminated in the first quarter.The company brought on new lobbyists, Bloomberg said, hiring lawyer Paul Brathwaite of Federal Street Strategies LLC and Josh Holly, president and founder of Holly Strategies Inc., and a former principal at the Podesta Group. Senate records compiled by Open Secrets.org indicate that Amazon Inc., has paid Federal Street Strategies $20,000 and Holly Strategies $40,000 so far this year.
As for the Information Technology Industry Council’s self-named PAC (ITI PAC), Andrew Halataei, senior vice president of government affairs, and vice president of government affairs lawyer Shannon Taylor, former congressional majority counsel, were contributors of multiple donations to the ITI PAC, records show. Attorney Lauren Van Wazer, head of global public policy at Akamai Technologies Inc., a content delivery distributor, LAO donated $500.
The ITI PAC has received more than $58,000 and spent $40,000 this year as of July 31, of which $16,500 went to House Republicans and $10,000 to Democrats; and $4,000 went to Senate Republicans and $1,000 to Democrats, according to records compiled by the Center for Responsive Politics at OpenSecrets.org.
Those opposed to an industry-authored federal privacy law are stepping up their efforts as well. Last year, nonprofit advocacy group Electronic Frontier Foundation, which supports internet privacy laws, spent $15,000 in 2017 with lawyer-lobbyist Michelle Richardson for reform of the Foreign Intelligence Surveillance Act. This year, Richardson was named director of the data privacy and data project at the Center for Democracy & Technology in Washington, D.C., a nonprofit advocacy group for internet privacy, earlier this month. The CDT also recently filed a brief in favor of restoring net neutrality in the Mozilla v. FCC case. Other groups that have lobbied for greater internet privacy protections in California include Consumers Union, according to public records.
Policy counsel, attorney Joseph Jerome at CDT, founded more than 20 years ago, said, “ any federal privacy law that industry would support would preempt certain state laws, specifically the California Consumer Privacy Act. Preemption has always been the “deal” to be had, and the real fight is what a federal privacy law might contain. Industry players ultimately want certainty in law,” he said. His group also wants a federal privacy law, he said, but “we want laws that meaningfully protect individuals and don’t sacrifice privacy simply for some innovative use of information.”
In a statement via email, attorney Ernesto Falcon, legislative counsel for the EFF in Washington, D.C., said of incipient efforts by the tech companies to get a federal privacy law, “The tech giants and large ISPs do not support privacy laws, period.” He continued: “We have seen it firsthand in California through their (Google, AT&T, Facebook and Comcast) efforts to kill EFF’s push to restore ISP privacy rules after Congress repealed them. We are seeing it now through their efforts to hamstring the recently enacted California Consumer Privacy Act by trying to exempt online advertising. They have been actively pushing back on Congress and the states from moving forward with consumer privacy protections at all points and we have seen no signs of a sincere reversal in that position despite public opinion weighing heavily in favor of rules.”
Falcon said EFF also would support a federal privacy law that provided a floor of protections, but “what is happening in D.C., though, is efforts to pre-empt state enforcement in their entirety, both in lawmaking and enforcement. We strongly oppose that effort.”
The California law is being criticized by big businesses in part for giving consumers the right to opt-out of sharing and to prohibit the sale of personal information. Tech companies fear that the California legislation could encourage states to enact their own data privacy laws.