Congress has made significant progress during the Biden-Harris administration in the areas of infrastructure, health care, climate change, and record investments in the economy. Unfortunately, that progress has not extended to any significant technology regulation, a legislative disgrace that should be cause for national concern.
Despite dozens of congressional hearings on foundational issues related to building safe, accountable, and competitive social media and artificial intelligence (AI) ecosystems—including on data privacy, Section 230, antitrust, civil rights, content moderation, and child safety—these hearings have yet to result in legislation. In fact, the only significant piece of technology regulation to emerge from Congress in the past six years has been a forced divestment and possible ban of TikTok, which has more than 170 million U.S. users, for national security risks (a smaller national security bill that codifies a recent executive order prohibiting the sharing or sale of Americans’ sensitive data to foreign adversaries also passed alongside the TikTok bill).
Technology absent adequate guardrails presents many threats to the rights and privacy of the American public. The American people are demanding that Congress act to protect them and their children, not just from foreign adversaries, but from tech companies that vacuum up and exploit their data, violate their civil rights, and put children at risk online. Washington’s inaction on data privacy has produced a regulatory patchwork in which most Americans do not have meaningful privacy protections and has led to a situation in which the European Union and state of California—not the U.S. government—are setting data privacy standards for the world. Moreover, the looming specter of AI has brought even greater urgency to address the potential privacy risks that this new technology will amplify. Congress must act to ensure that the TikTok ban is not the only significant technology regulation passed this year.
The need for a federal data privacy law
In his bipartisan tech unity agenda, President Joe Biden laid out the harms brought by Big Tech, including the huge amount of data collected about Americans online, the danger of the concentration of tech power in a handful of companies, and the abuse millions of kids face online. This agenda called for a federal privacy law, antitrust reforms, and kids’ online safety. Congress has the unique opportunity to take meaningful action by passing substantive legislation to address the American public’s broader concerns about technology platforms.
Data collection powers almost every modern commercial enterprise. In a data-centric society, federal data privacy legislation is a critical starting point for all effective tech regulation. Today, Americans lack federal protections from most exploitative uses of their data and are among the most vulnerable in the world to abusive data collection. Passing a federal privacy law could also help bolster the legal basis for a TikTok divestment ban as it goes before the courts by demonstrating a consistent federal posture on data privacy for Americans or serve as a backstop ensuring all Americans have data protections if the TikTok ban is overturned by the courts.
The recent release of a discussion draft of the bipartisan and bicameral American Privacy Rights Act (APRA) by House Energy and Commerce Chairwoman Cathy McMorris Rodgers (R-WA) and Senate Committee on Commerce, Science, and Transportation Chairwoman Maria Cantwell (D-WA) creates a legitimate opportunity to pass meaningful legislation that establishes a federal privacy law. APRA would establish new regulatory frameworks and accountability options as a protection against data abuses and give Americans protections from certain algorithms and the right to opt out of those algorithms, which make unchecked consequential decisions about their lives. As the bill moves forward in the legislative process, Congress should continue to make important and needed tweaks to the APRA discussion draft to improve civil rights discrimination protections, prevent online advertising abuses, and ensure researcher access.
Privacy is essential to address artificial intelligence
Congress is also focusing its efforts on developing new legislation to regulate artificial intelligence. Senate Majority Leader Chuck Schumer (D-NY) has declared AI a key priority for the Senate and has promised a forthcoming AI framework, and the U.S. House of Representatives has stood up a bipartisan task force on AI. As the Center for American Progress has previously called for, Congress must prioritize the following key AI issues:
- Guardrails for ethical AI development and deployment
- Protections for workers and measures to ensure that AI broadly benefits society
- Civil rights protections to combat discrimination and bias in automated systems
- Election integrity and strategies to mitigate disinformation and deepfakes
But future AI regulation will be difficult to accomplish without privacy legislation, as data is one of the critical engines that underpins the development of AI models. APRA lays a solid foundation for future AI legislation with its provisions around civil rights, algorithms, and consequential decision opt-outs. If Congress does not pass privacy legislation now, it will have to pass some form of it before or as part of any AI regulation.
Legislation protecting Americans’ privacy and safety would only be a starting point for the substantive, comprehensive technology regulation that is needed. As the Center for American Progress has previously outlined, the current state of technology demands urgent action to regulate online services, modernize antitrust laws, and address AI governance comprehensively across numerous issues. Moreover, federal agencies need not wait on Congress to utilize their existing statutory authorities to address AI risk now, beyond the tasks in the 2023 AI executive order.
Conclusion
It is rare that Congress has the opportunity to engage in serious bipartisan legislation this far into a legislative session. Already, the House has demonstrated its commitment to making progress on these issues when it held a serious, focused hearing on privacy and children’s online safety bills and has already scheduled markup of this legislation. In addition, several of the children’s online safety bills introduced in the House have strong support in the Senate, making them strong candidates for congressional action.
Congress should take the opportunity to pass meaningful bipartisan legislation on data privacy and children’s safety. Members of Congress and the Biden administration would be wise to have a robust accomplishment to tout around real data protections for Americans—not just a TikTok ban. Failure to do so would be a significant political and policy mistake. This moment poses a very real opportunity for Congress to pass serious, comprehensive technology legislation this year. It should not be squandered.
About the authors: Adam Conner is the vice president for technology policy at the Center for American Progress. Dr. Alondra Nelson is a distinguished senior fellow at the Center for American Progress. Ben Olinsky is the senior vice president of structural reform and governance and a senior fellow on the economy team at the Center for American Progress.
This article was published by the Center for American Progress.
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