After advancing steadily in their respective legislatures the first few months of 2021, the Oklahoma Computer Data Privacy Act has seemingly died, and the Washington Privacy Act may run into similar roadblocks it faced in prior years.
After passing the Oklahoma House in early March, the Oklahoma bill grinded to a halt the first week of April after Oklahoma Senate Majority Leader refused to allow the bill to have a hearing, as confirmed in tweets and in a press conference by one of the bill’s sponsors, Rep. Collin Walke. The bill, which would have required businesses to obtain consumers’ consent for any collection of data and included an opt-in requirement for sale of personal information, garnered bi-partisan support in the House but faced significant industry opposition and was opposed by Republicans in the Oklahoma State Senate. Our team’s prior update on the Oklahoma bill can be found here.
This year marks the third year that a version of the Washington Privacy Act (WPA) has been introduced in the state’s legislature. Prior versions from 2019 and 2020 died due to disagreement over consumer private right of action, mostly along party lines. The 2021 WPA, as introduced in January, included a private right of action with statutory damages of $7,500 per violation. The private right of action was ultimately removed from the bill and was not included in the version of the bill passed by the Senate in early March.
On April 1, the House Committee on Civil Rights and Judiciary voted to approve a striking amendment which includes a watered-down private right of action that would allow consumers to seek injunctive relief for violations of the WPA. The amendment also requires a court to award attorneys’ fees to a prevailing plaintiff. Based on the Washington legislature’s history with this bill and, in particular, prior refusals to pass any privacy law with a private right of action, this year’s version of the WPA appears to be on a similar path to those prior bills. Other controversial provisions in the amendment that may decrease the likelihood of the bill’s passage include the expiration of the Attorney General’s thirty-day cure period for violations, on the one year anniversary of the July 2022 effective date (for clarity, the allowance for cure would expire in July 2023).
Although these developments complicate the path to enactment, we still believe both bills stand a good chance in 2021 (see our posting with predictions here). We will continue to provide updates on these bills as their statuses in their respective legislatures change.