Renzo Downey - February 10, 2022
'Go back to your folks that are paying you to buy those $2,000 suits and beg their forgiveness and give them some of their money back.'
Legislation to strengthen consumer data privacy in Florida is moving again in the Legislature as lawmakers and businesses look to settle the differences that torpedoed the bill last year.
The proposal (SB 1864/HB 9) would give consumers the right to determine what information has been collected, delete or correct the data, and opt-out of the sale or sharing of that personal information. But the version filed by Sarasota Republican Rep. Fiona McFarland, which the House Commerce Committee approved unanimously on Thursday, has drawn resistance from business interests who fear complying with the measure will be financially crippling.
McFarland told the committee there are innocuous and beneficial uses for someone’s data, such as phone notifications about a person’s commute to work.
“This bill does not impact that. But when our data is put up for sale to the highest bidder for digital advertising or manipulation, I want to have a say in who can buy that information,” McFarland said.
Florida TaxWatch estimates the 31-page legislation would saddle companies with upward of $33.8 billion in startup and compliance costs. However, McFarland and the bill’s proponents argue the measures are necessary, adding that it would put Florida at the forefront of the nation’s data privacy protections, which have been passed in states like California and Virginia.
“You have the privilege of my personal information, and I hate to tell you, but I value my privacy and I value the privacy of Floridians, so in this case, I’m okay with businesses to have to incur a compliance cost,” McFarland said.
A letter sent to the House Commerce Committee from 13 organizations — including TaxWatch, Associated Industries of Florida and the Florida Retail Federation — previewed the opposition the lobbyists mounted during the committee meeting.
The letter says that businesses are already struggling under the weight of COVID-19’s effects, an increase in the minimum wage, hyperinflation, and a broken supply chain. Florida Retail Federation President and CEO Scott Shalley said COVID-19 recovery is still underway.
“I would like to keep that up, and I would like to see continued progress and not see this burden place where we’ve seen, in the other states, the cost that has come with it and the lawsuits that have come with it,” Shalley said.
Florida Justice Reform Institute President William Large said he feared the legislation would devolve into plaintiffs purposely asking companies to delete or not share their information in the hopes of receiving the damages that could total up to $750 under the bill.
“But the real bad actor is going to be the attorney, who’s going to get their fees paid because this is a one-way attorney fees provision only for the consumer,” Large said.
While critics agreed the House proposal has improved since last year, they feared any business that collects the information of 50,000 or more consumers and uses it for targeted advertising and more could be subject to the bill’s controls.
Gainesville Republican Rep. Chuck Clemons joked it was “Haberdasher Day” with the abundance of $2,000 suits in the committee room before leveling a more serious criticism against the business lobbyists.
“I heard a lot of specious arguments against this bill today, and shame on you, shame on you, to come up in front of the dais and try to feed us some of those arguments,” Clemons said.
During the public testimony portion of the meeting, Clemons had drilled Alfred Saikali, who leads Shook, Hardy and Bacon’s privacy practice, over Saikali’s different interpretation of the bill’s exceptions. Saikali said the bill’s language that includes any business that “buys, receives, sells, or shares” personal information also includes any business that collects that information. Clemons and committee staff disagreed.
“Go back to your folks that are paying you to buy those $2,000 suits and beg their forgiveness and give them some of their money back. That’s crazy,” Clemons continued.
While businesses and the Legislature continue to fight over the more than six-page list of who and what actions are exempt from the data privacy protections, the House is standing firm against the Senate, which wants to prevent individuals from suing businesses individually.
The Senate bill, carried by Fleming Island Republican Sen. Jennifer Bradley, would tap the Florida Attorney General as the only one who can sue companies. Business lobbyists thanked McFarland for removing the opportunity for class action lawsuits, but the “private cause of action” would still allow frivolous lawsuits in their eyes.
Disputes over the House’s and Senate’s approaches helped kill last year’s data privacy bill.
Gov. Ron DeSantis began Florida’s push for increased consumer data privacy as he launched attacks against Big Tech in the wake of the 2020 election. During his State of the State address last month, DeSantis reiterated his support, but where he stands on the lawsuit issue is unclear.
House Speaker Chris Sprowls has remained firm that the private cause of action is necessary.
“Some of the ideas that were floating out there, in our view, didn’t have the kind of teeth to seem that we were really doing something for Floridians,” Sprowls told reporters last month of last year’s Senate proposal.
After Thursday’s meeting, McFarland told Florida Politics the definitions and enforcement mechanisms are important.
“I have no interest in passing a bill for symbology sake,” McFarland said. “I want to pass a bill that actually protects Floridians.”