How will Republican win impact regulation of consumer data, privacy?

Tuesday’s historic elections in which voters returned former Republican President Donald Trump to the White House and gave Republicans control of the Senate will undoubtedly have a significant impact on the direction of efforts to regulate companies’ collection, protection, and sale of consumer data.

Biometric Update reported prior to the election that the Congressional Research Service (CRS) said in an issues brief for lawmakers that “the collection of consumer data has raised concerns about consumer data privacy … and whether existing data privacy laws are sufficient.”

The CRS noted that the outgoing 118th Congress had enacted legislation prohibiting data brokers from selling, licensing, or otherwise making available the personally identifiable information of persons residing in the United States to a foreign adversary and had made some progress toward regulating companies’ collection and sale of consumer data, but has yet to pass comprehensive, uniform federal legislation. Instead, the regulation of data privacy and consumer data collection remains fragmented and largely driven by state-level initiatives, industry self-regulation, and ongoing debates about regulation in Congress.

Analysts polled by CQ Roll Call said last week that “Republican control of the Senate would likely tilt tech policy, ranging from regulation of artificial intelligence to … industry-friendly terms.” Meanwhile, Big Tech venture capitalists have predicted a “light-on-regulation regime that would be a boon for the tech industry.”

Reuters reported that Trump plans to soften the government’s approach to Big Tech antitrust cases, especially Google, and Elon Musk – who Trump is expected to appoint as government “efficiency czar” – said Federal Trade Commission (FTC) Chair Lina Khan would be fired. Under Khan’s tenure, FTC launched antitrust investigations into Google, Amazon, Meta, and Apple. Trump’s position on Big Tech revolves around concerns about censorship, bias, monopolistic practices, and the power these companies wield over public discourse, with a strong focus on regulatory reforms and legal accountability. The impact of a Trump administration on artificial intelligence remains murky, but less regulation certainly seems likely.

Generally speaking, Republican lawmakers have favored a more market-driven and hands-off approach when it comes to regulating the collection and sale of consumer data, especially compared to Democrats. They’ve argued against heavy-handed regulations, saying they could stifle innovation and impose unnecessary costs on businesses, particularly Big Tech companies. Republicans have expressed concern that strict data privacy laws could hurt small businesses and startups that rely on data-driven business models for success.

Indeed. Republicans have tended to be a lot less inclined to impose restrictions on how companies monetize consumer data than their Democratic counterparts. They’ve argued that data-driven business models are essential for the growth of the tech sector, and that consumers benefit from free services like social media in exchange for providing Big Tech data about them. Monetizing data, in their view, is a key driver of innovation and competition.

Republicans also have expressed concerns about a patchwork of state laws which gives consumers more control over the personal information that businesses collect about them, and the potential confusion and burden this creates for businesses that operate across state lines. Many Republicans prefer a single federal framework for data privacy regulation rather than a fragmented approach, and typically have advocated for a lighter touch compared to what Democrats would like to see.

Republicans who support data privacy legislation have been more inclined to focus on giving consumers more control over their data through greater transparency, opt-in/opt-out mechanisms, and choice. For example, they’ve advocated for policies that allow consumers to easily access, correct, or delete their personal data, but with a focus on empowering individual consumers rather than imposing rigid mandates on companies.

Many Republicans also favor a self-regulatory approach in which the tech industry takes the lead in creating its own standards for data privacy and transparency, with minimal government interference. This approach, they argue, allows for flexibility and encourages innovation without stifling the market.

Many Republicans also are wary of government intervention in private business practices, especially in the data economy, arguing that imposing strict limits on how companies can use consumer data could set a dangerous precedent for government overreach into other sectors of the economy.

Some Republicans who support data privacy legislation have focused on striking a balance between protecting consumer rights and ensuring that businesses have the flexibility to innovate but may be open to certain regulations that protect sensitive personal data but oppose regulations that could hinder broader data collection practices or the ability of companies to use data for targeted advertising or other business purposes.

Republicans have raised concerns about global competitiveness in the tech sector, arguing that overly restrictive data privacy laws in the US could disadvantage American companies relative to foreign competitors, particularly in countries with more lax privacy regulations. As a result, Republicans have advocated for data privacy laws that are flexible enough to avoid hampering the competitive edge of US tech companies on the global stage.

While Republicans generally have been skeptical of broad data privacy regulations, they have also expressed support for antitrust action against tech giants, especially centering on issues of monopolistic practices. However, Republicans have tended to view antitrust action and data privacy regulation as distinct issues. While Democrats have advocated for addressing both simultaneously, Republicans may be more inclined to address data privacy concerns separately, with an emphasis on market-based solutions rather than regulatory oversight and overreach.

And when it comes to censorship concerns, in recent years Republican lawmakers have been very vocal about Big Tech’s influence on public discourse. This perspective sometimes intersects with data privacy debates, especially when it comes to how tech platforms collect data on users’ behaviors and opinions. In this context, Republicans might argue that greater transparency and fairness in data collection practices could help reduce bias or censorship, but they are less likely to support heavy-handed regulation of consumer data itself.

Bernie Moreno, an Ohio Republican businessman newly elected to the Senate, has expressed strong concerns about the power and influence of Big Tech companies. He has called for increased accountability, particularly of the companies that dominate social media, and believes that these companies have grown too powerful and need to be held responsible for their influence on public discourse and their monopolistic practices. His campaign website states he will “hold Big Tech accountable and break up big media.”

Moreno has criticized Big Tech’s role in censoring political speech and controlling information, particularly accusing platforms of unfairly silencing conservative viewpoints. Moreno supports efforts to rein in biased content moderation and ensure that companies operate with greater transparency and neutrality in their platforms.

Moreno also has expressed concern over the privacy risks posed by Big Tech’s collection of consumer data. While he hasn’t been as vocal on data privacy regulations as others in his party, his views align with privacy protections that prevent Big Tech companies from exploiting personal data without proper consent. He supports policies that ensure that consumers have control over their data and that companies are more transparent in how they use it.

At the same time, however, like many in his party, Moreno advocates for ensuring that government regulation does not become too burdensome for innovation, particularly when it comes to emerging technologies. While advocating for tech accountability, he also wants to ensure that entrepreneurial spirit and business innovation are not stifled by excessive regulation, which has been a dominate theme in Republican discourse.

Tim Sheehy, another businessman newly elected to the Senate, has expressed strong opinions on issues like censorship, antitrust, and free speech that is in line with many conservative Republicans who have concerns about Big Tech’s increasing power. His positions reflect broader trends among Republicans regarding tech regulation. has expressed skepticism and concern about the power of big tech companies. While he has not put forward a comprehensive policy platform specifically dedicated to regulating big tech, Sheehy has shown a general inclination towards supporting a more hands-off, free-market approach, and has been critical of the way big tech companies have handled issues related to censorship, data privacy, and their dominance in the marketplace.

Sheehy has made free speech a central part of his critique of Big Tech. He has criticized biased censorship of conservative viewpoints by social media platforms, arguing that Big Tech companies have become too powerful in controlling public discourse. Sheehy supports protecting free speech and opposes what he sees as ideological censorship by social media platforms and has voiced support for policies that would limit tech companies’ ability to censor content based on political views or other ideological biases, promoting a more neutral environment for speech on social media platforms.

Sheehy supports stronger data privacy protections for consumers and believes that Big Tech companies must be more transparent about how they collect, store, and use personal data. While he hasn’t been as detailed as some other candidates on the specifics of data privacy laws, his general stance is in favor of consumer protections against misuse of personal information by large corporations. He has also pointed to the risks posed by tech companies that amass massive troves of consumer data, arguing that consumers should have more control over their information.

Moreno and Sheehy’s positions align with the broader conservative push for a balanced approach – regulating Big Tech to ensure fairness and protecting consumers but avoiding overly burdensome regulations that could stifle innovation and free enterprise.

In general, Republicans’ dominant position on data privacy and the regulation of consumer data collection has leaned toward preserving a free-market approach while encouraging transparency and consumer control over personal data. While they are not opposed to data privacy regulations entirely, they’ve advocated for a more measured, less intrusive approach compared to the more regulatory-heavy stance taken by Democrats. They are also more likely to push for policies that allow businesses to innovate without fear of excessive government intervention, viewing privacy concerns as something that can be addressed without stifling the growth of the tech industry.

In the absence of comprehensive federal legislation, several states have passed their own data privacy laws, resulting in a patchwork of state regulations and enforcement mechanisms that have become one of the driving factors behind calls for federal legislation to standardize data privacy protections across the nation. Numerous bills have been introduced in recent years, but none have made it into law. The two most prominent efforts were the American Data Privacy Protection Act (ADPPA) and the Consumer Online Privacy Rights Act (COPRA).

In 2022, House Republicans, led by Rep. Kathy Rodgers and Sen. Roger Wicker in the Senate, introduced the ADPPA, which would have created a national framework for data privacy that grants consumers more control over their data, including the ability to access, correct, delete, or transfer their data. It also would have restricted the sale and sharing of consumer data, particularly sensitive data, without explicit consumer consent.

ADPPA also would have imposed penalties for companies that fail to comply with privacy standards and would have allowed consumers to opt out of data collection practices and restricts companies from targeting minors with personalized ads. The legislation was the first comprehensive data privacy and data security bill to be introduced with bipartisan and bicameral support and was viewed at the time as the best opportunity to pass federal privacy framework in decades.

The legislation was seen as a compromise between privacy advocates who want stronger protections and industry groups concerned about over-regulation. However, despite passing the House Committee on Energy and Commerce, the bill never received a full vote in the House or Senate, primarily due to disagreements over issues related to enforcement, preemption of state laws, and how to balance consumer privacy with business interests.

The other major bill was COPRA, which was introduced by Sen. Maria Cantwell and focused on protecting consumers’ data privacy online, especially in the context of advertising. COPRA proposed creating a federal standard for privacy, giving consumers the right to control their data, file complaints, and seek legal recourse for violations. While COPRA garnered support from privacy advocates, it faced resistance from business interests, particularly tech companies which argued that it could impose costly burdens and stifle innovation.

A central point of contention was the issue of preemption, which would prevent states from passing their own data privacy laws. Some states, such as California, and state lawmakers were concerned that ADPPA would override those laws and reduce their ability to address privacy issues at the local level. This issue created a divide between federal lawmakers who wanted a national standard and state lawmakers who wanted to preserve their own privacy protections. Some industry groups, however, argued that a single, federal standard would be more effective and efficient, and support preemption of state laws to avoid a patchwork of state regulations.

Another major issue was how to balance consumer rights to control their data with companies’ business models, which often rely on the collection and sale of personal information for advertising and other purposes. While privacy advocates want stricter rules on data sharing, industry groups are wary of regulations that could restrict their ability to monetize user data.

Both ADPPA and COPRA called for the creation of federal agencies to enforce data privacy standards, but lawmakers were divided on the scope of enforcement and how to ensure such a law would be enforced without placing a burden on businesses, especially small businesses. At the same time, other data privacy proposals, including bills focused on targeted advertising or addressing specific issues like children’s privacy, were also being debated in Congress. This fragmentation of efforts made it more difficult for any one piece of legislation to gain momentum.

In the absence of comprehensive legislation, the FTC has been an active player in regulating data privacy and protecting consumers’ personal information under its Section 5 authority of the Federal Trade Commission Act, which gives the FTC broad powers to take enforcement actions against companies that violate consumer privacy, especially when those companies make misleading claims or fail to protect consumers’ data adequately.

In 2019, the FTC reached settlements with Meta, Google, and TikTok over their data collection and privacy practices, and took action against companies for failing to provide adequate data security protections. The FTC has regularly targeted companies for failing to adhere to privacy policies that they have published to consumers, including cases where companies misrepresented their data privacy practices or did not follow through on the promises they made regarding consumer data.

In 2023, the FTC took significant steps to enhance protections for children’s privacy and impose stricter rules on targeted advertising. These new regulations focused on addressing both the unfair use of children’s data and the manipulative nature of certain advertising targeting children.

The FTC’s recent actions indicate an increased willingness to regulate data collection and sale practices, but the agency’s authority is limited, and it is unlikely to fill the gap left by Congressional inaction.

Growing public concern about data breaches, misuse of personal information, and targeted surveillance by tech companies has only increased pressure on lawmakers to act. While high-profile IT breaches have heightened awareness of the need for stronger privacy protections, tech industry groups, including the US Chamber of Commerce, continue to lobby against overly restrictive privacy laws, arguing that they could harm innovation, particularly for small businesses and startups that depend on the data economy.

The European Union’s General Data Protection Regulation (GDPR), which took effect in 2018, has set a global standard for data privacy and protection. While the US has not yet passed similar comprehensive laws, the GDPR has influenced the conversation in Congress, with many lawmakers using it as a model for US legislation.

Additionally, international companies that operate in both the US and Europe are increasingly advocating for a unified standard for data protection to avoid the cost and complexity of complying with multiple regulations.

As of now, Congress continues to grapple with how to regulate data collection and the sale of consumer data. Although there is growing momentum toward a federal privacy law, partisan differences, industry pushback, and state-level preemption concerns have delayed meaningful action.

The patchwork of state laws and federal agency actions – and inactions – continue to be the primary mechanisms for data privacy protections, but the 119^th Congress will undoubtedly continue to debate and refine proposals in the coming years, with potential breakthroughs contingent on the political landscape, lobbying pressures, and public demand for stronger consumer protections.

Article Topics

biometric data  |  biometric identifiers  |  data privacy  |  data protection  |  legislation  |  regulation  |  standards  |  U.S. Government