Continuing the saga from The situation is … fluid
Last updated: March 10. The session is over. Click here to see to the updates.
Friday was not a great day for 👎🏽 Bad Washington Privacy Act. The House adjourned for the weekend without voting on 2SHB 1850.  And Saturday’s Ways & Means hearing got cancelled after 106 people signed in CON and 0 people signed in PRO.
Washington’s 2022 legislative session doesn’t end until Thursday March 10, so there’s still plenty of time left for late-session negotiations and other shenanigans.  The 2SHB 1850 is back on the House floor calendar today. Meanwhile, SB 5062 and secret amendment S-…. /22 ⁉️ are still lurking in Senate Rules, ready to hit the floor at any moment.
So there are still potential paths for the Bad Washington Privacy Act to pass. The good news, though, is that the 💜 People’s Privacy Act 💜 is as close as it’s ever been to getting a hearing.
It ain’t over till it’s over.
Broad opposition at the cancelled hearing
The signins before Saturday’s 2SHB 1850 hearing got cancelled highlight how broad the opposition is to the Bad Washington Privacy Act.
- Washington State Attorney General’s Office signed in CON
- WA Defenders Association and WA Association of Criminal Defense Attorneys signed in CON
- Electronic Frontier Foundation; Consumer Federation of America, and Parent Coalition on Student Privacy signed in CON
- Indivisible Bellingham, North Kitsap Indivisible, Wallingford Indivisible, and dozens of Indivisible activists signed in CON
- And so did Tech Equity Coalition groups and allies including Seattle Chapter, Japanese American Citizens League (JACL); InterIm CDA; La Resistencia; Real Change; LELO/A Legacy of Equality, Leadership and Organizing; Densho; MAPS-AMEN (American Muslim Empowerment Network); People First Bellingham; Council on American-Islamic Relations, Washington Chapter (CAIR-WA); John T. Williams Organizing Committee; Washington Poor People’s Campaign; and ACLU of Washington
Supporters of the Bad Washington Privacy Act also signed in CON on 2SHB 1850 – albeit for different reasons. Washington Technology Industry Association (WTIA) was first on the list; Google, AT&T, Verizon, TechNet, State Privacy & Security Coalition, Association of Washington Businesses, Washington Retail Association presumably also agree WTIA’s CEO Michael Schutzler’s misleading Seattle Times op-ed couple of weeks ago calling on legislators to “stop looking to the past” and pass the version of SB 5062 that they legislators rejected last year.  Industry consistently opposed HB 1850, SHB 1850, and 2SHB 1850, claiming that the weaksauce private right of action (further weakened by the CR&J committee and then again by Appropriations) would cause the sky to fall. 
That said, opposition to 2SHB 1850 was not universal.
Consumer Reports signed in to testify PRO — on a bill that AG Ferguson described as “anti-consumer”, and confirmed that the right to cure will “negatively impact” his office’s open data privacy investigations. Awkward! 
Quite a few Tech Equity Coalition and Indivisible members also followed up with additional email feedback to legislators, as did EFF, Consumer Federation of America, Parent Coalition on Student Privacy, and ACLU of Washington in hard-hitting letters. [AG Ferguson had previously mailed the legislature in December, correcting “inaccurate assumptions” of Bad Washington Privacy Act supporters.] Of course legislators are getting so much mail that it’s hard to know how many of them they actually read this feedback, but those who did got an earful.
As the latest partial fiscal note (which allocates 0.5 FTEs and a budget of $0) highlights, there’s still a lot of work to be done.  But Washington’s legislature can move very quickly when it wants to. Here’s one way the Bad Washington Privacy Act could still pass this session.
- the House passes an amended version of 2SHB 1850 today or tomorrow and immediately refer it to the Senate
- Ways & Means 💰 schedules another snap hearing on the amended 2SHB 1850 , followed by an exec session where they advance it
- Senate Rules 📏 publish the secret amendment S-…. /22 ⁉️ and creates a hybrid SB 5062 / S-…. /22 / 2SHB 1850
- a new fiscal note for SB 5062 / S-…. /22 / 2SHB 1850 is published
- the Senate passes SB 5062 / S-…. /22 / 2SHB 1850
- the House concurs
That’s a lot for the last four days of the session … but legislators really want to pass something. So, it’s possible.
Update, March 8: another approach would be to skip the House vote on 2SHB 1850. Instead for the Senate to pass a a hybrid SB 5062 / 2SHB 1850 and send it to the House which could whisk it through committees and vote on it. This has the “advantage” of avoiding a Senate hearing; Appropriations might still have to hear it but they’ve already advanced 2SHB 1850 so maybe they’d just rubber-stamp the new bill as well. Sen. Carlyle’s recently-intoroduced floor striker 5062-S2 AMS CARL S4439.6 (aka 👎🏽 SB 5062 amendment 1484 👎🏽) could be a vehicle for this.
Most likely, though, everybody will decide they’ve got better things to do the last four days of the session, the House won’t vote on 2SHB 1850, we’ll never see S-…. /22 ⁉️ or a SB 5062 / S-…. /22 ⁉️ / 2SHB 1850 hybrid, and the Bad Washington Privacy Act will fail for the fourth year in a row.
If so, hopefully discussions will continue in the interim. The landscape could be very different when the legislature returns next year. Even though the talk over the last few days has been primarily about secret amendments and other shenanigans, there really has been a lot of progress made this session.
One way or another, we’ll know soon enough. Until then though … it ain’t over.
March 8 morning update: Sen. Carlyle’s secret amendment has finally been published! S-4439.6/22 6th draft is now officially known as 5062-S2 AMS CARL S4439.6 (aka SB 5062 amendment 1484 ) and it’s a SB 5062 / 2SHB 1850 hybrid. It rolls back SHB 1850’s improvements to definitions of sharing and targeted advertising. It fails to incorporate Rep. Pollet’s transparency amendment so the commission is still allowed to dismiss violations in a secret hearing. And so on.
In other words, it’s a commission with no transparency or public oversight, combined with the Bad Washington Privacy Act 👎🏽 the House rejected last year (as well as the two previous sessions). Sen. Carlyle seems to have a very hard time understanding the concept of “NO”.
Some legislators were concerned that the timing of the striker amendment could be a threat to hold the budget hostage. Then again, maybe all the heat the House took for passing legislation that refers to the secret amendment S-…. /22 ⁉️ meant they felt that they needed to publish something. In any case …
- Amy Miller of Lexis/Nexis MLex says the sponsors went on the record saying consumer privacy legislation won’t pass this year, Her article has more details but is paywalled.
- Joe Duball of IAPP Privacy Pros says that his own sources confirm it.
- The House adjourned today without voting on 2SHB 1850.
- SB 5062, the Bad Washington Privacy Act 👎🏽 is not on the Senate floor calendar for tomorrow.
- The session ends on Thursday.
We shall see.
SB 5062 👎🏽 is not on the Senate floor calendar for tomorrow.
That said, even this afternoon we’re still hearing that some legislators are concerned about potential shenanigans. And who can blame them? Yesterday afternoon at 3:00 pm, five hours after Amy Miller’s report that bill sponsors had confirmed that the bills wouldn’t pass this session, a new partial fiscal note for 2SHB 1850 ❌ appeared! It’s hard to know what to make of this — it could just be dotting i’s and crossing t’s, or perhaps staffers having nothing better to do with their time — but in a situation where there have already been so many shenanigans, it’s not exactly reassuring.
The Washington legislature has adjourned. No actions were taken on SB 5062 👎🏽 , or 2SHB 1850❌.
The 👎🏽 Bad Washington Privacy Act 👎🏽 has failed for the fourth year in a row. Congratulations to grassroots activists around the state, and the Tech Equity Coalition on a huge victory!
 See 2022 Washington privacy legislation: bill numbers and amendments for an overview of SB 5062, 2SHB 1850, S-…. /22⁉️ and the SB 5062 /S-…. /22 ⁉️/2SHB 1850 hybrid. The situation is … fluid, our March 4 update, has more background.
 Speaking of shenanigans, if you’re wondering why these bills are still alive when the legislature’s “house of origin” cutoff was February 15, it’s because they’ve been classified NTIB (“necessary to implment big tech’s agenda”), which exempts them from normal deadlines.
 It’s not just you, nobody else understands why WTIA thought legislators would be convinced by the bizarre argument of “Stop looking to the past! Past the legislation you rejected last year!” But, that’s what the op-ed says. Jennifer Lee and Maya Morales’ Fact Check: WA’s Leadership on Privacy Legislation has a more detailed analysis of WTIA CEO Michael Schutzler’s misleading op-ed.
 2SHB 1850’s private right of action (PRA) is a significantly-weakened version of the PRA in SHB 1850, which is in turn a significantly weakened version of the PRA SHB 1850, which already feel far short of the strong PRA privacy advocates want. As EFF said in their March 4 letter to the legislature, a full private right of action should include statutory damages.
 although not unexpected. At last week’s House Appropriations hearing, Rep. Hansen announced that Consumer Reports was expected to support the bills because the secret amendment S-…. /22 ⁉️ will include improvements to SB 5062 👎🏽’s opt-out mechanism.
Consumer Reports also supported the Bad Washington Privacy Act 👎🏽 in 2020 and 2021. In 2021 they endorsed despite describing the bill’s right to cure as a “get-out-of-jail-free card” that “ties the AG’s hands and signals that a company won’t be punished for breaking the law” (see p.3, in the paragraph about the bill’s “strong enforcement”), but spun it as a positive because because would have sunseted a year after negatively impacting all the AG’s current investigations. This year’s bill made the right to cure permanent so it’ll be interesting to see how they spun that.
 Presumably this fiscal note was just published because they had to have something in place to allow for a House vote or Ways & Means 💰 hearing on 2SHB 1850. Staffers are no doubt overjoyed at continuing to waste time preparing new fiscal notes on these bills — this is the eighth so far, and presumably S-…. /22 will require another one — and several of these, including, the previous fiscal note on SHB 1850, actually did include a budget and headcount (although no revenue numbers). However, just in case there’s a Ways & Means hearing on the bill before the new fiscal note gets published …
Washington People’s Privacy Network OPPOSES 2SHB 1850 and SB 5062 👎🏽, as well as a potential SB 5062/S-…./22⁉️/2SHB 1850 hybrid, for a variety of reasons. Our comments in this footnote focus on the fiscal aspects.
The $0 budget allocation over the biennium ($0 / year) is clearly insufficient. 0.5 FTEs are even less than the paltry 3.6 FTEs allocated by last year’s Bad Washington Privacy Act 👎🏽, and not enough to take on companies like Amazon, Google, and Facebook. For comparison, Ireland’s data protection commission has a $23 million annual budget despite having a population smaller than Washington state. Even the tiny Grand Duchy of Luxembourg spends $7 million / year on its data protection authority.
And while as taxpayers we appreciate the frugality of this budget, with the red-hot job market right now, annual compensation of $0 / year is unlikely to attract the top-tier talent Washington needs to protect our privacy.