Wash. Privacy Bill Allowing Individual Lawsuits Clears House Committee

Through an amendment, Rep. Shelley Kloba (D) added a right to cure to her proposed data privacy bill despite earlier pushing against that idea. However, she refused to back down on removing the ability for individuals to sue.

Although Kloba said at a hearing last week (see 2502040055) that she was "not willing to talk about a right to cure," her substitute amendment contained a 30-day opportunity for businesses to cure violations before facing enforcement. The right to cure would sunset Aug. 1, 2027. Additionally, Kloba’s amendment removed a proposed requirement that an opt-out preference signal must enable the controller to determine that the consumer is a resident of Washington or a different state. Also, it modified the bill’s definition of processor to exclude those who process data on behalf of government entities. And Kloba added exemptions for journalists and information disclosed due to insurance fraud watchdogs.

However, Kloba joined the committee in a voice vote rejecting an amendment by Rep. Stephanie Barnard (R) limiting enforcement to the attorney general. Barnard said the private right of action was her “largest concern with the bill,” because she’s against “lining the pockets of our trial attorneys.” Also, no other states’ privacy laws have one, she said.

Kloba countered that it’s important to allow individuals to sue, including because she worries about funding levels at the AG office. She noted that the state’s longstanding consumer protection law, which governs how the privacy bill is enforced, requires individuals to show harm and meet other criteria. "We have precedent in this state for private right of action in all kinds of things, including personal data," added Kloba, citing the Washington My Health My Data Act.

Both political parties supported an amendment by Rep. Michael Keaton (R) to edit the bill’s definition of dark patterns to remove a reference to any practice referred to by the FTC as a dark pattern. Keaton said the change synchronizes HB-1671 with pending bills in the legislature. Meanwhile, Kloba supported it due to her concerns about the possible diminishment of the FTC's and other federal agencies’ regulatory roles.

The panel voted by voice to reject two more Republican amendments, including another by Barnard to expand the law’s applicability to state government entities and their contractors. Members also voted against a Rep. Kevin Waters (R) amendment that he said was meant to address some businesses’ concerns that the bill could undermine loyalty programs.