The House Energy and Commerce Committee advanced the bipartisan American Data Privacy and Protection Act (H.R. 8152) by a 53-2 vote, the most significant show of support for any comprehensive consumer privacy measure in Congress thus far.
The bill would not cover employee data, which is defined as, among other things, “information processed by an employer relating to an employee who is acting in a professional capacity for the employer.” HR Policy Association has long advocated for such exclusions from comprehensive consumer privacy bills, including this one.
State employee privacy measures explicitly not preempted: The bill’s preemption clause includes a significant number of exemptions. Among them are “Provisions of laws… that govern the privacy rights or other protections of employees” and “employee information.” The exemption is notable given a previously reported upon effort in California to do just that.
Impact assessments of AI use: Within two years of enactment, companies would be required to begin submitting an annual impact assessment of the use of a “covered algorithm” to screen job applicants and other applicant-related tasks. The assessment would include a description of the steps companies are taking “to mitigate potential harms from the covered algorithm to an individual or group of individuals.” Notably, political affiliation is listed among the protected classes, among those already covered by federal equal employment opportunity laws.
Use of algorithms to diversify an applicant pool would not be covered by the bill.
Political outlook: The bill has been well received by many privacy advocates and is popular in Congress. However, it still faces significant challenges, including concerns from the business community largely over its preemption and enforcement provisions and from California legislators that it will weaken California’s state privacy regime. (Reps. Anna Eshoo (D-CA) and Nanette Diaz Barragán (D-CA) were the only votes against the bill advancing.) Perhaps more significantly, Senate Democrats have yet to embrace the bill, and the window for action this year in both chambers of Congress is quickly closing.