Washington’s State House Again Amends Proposed Privacy Act to Include a Limited Private Right of Action. Will This Kill the WPA a Third Time Running?

Washington’s long-sought state privacy act (the “WPA”) has again taken a controversial, and if history repeats itself, fatal turn.  On March 26, 2021, the Washington House of Representative’s Civil Rights & Judiciary Committee took executive action on Second Substitute Senate Bill 5062, this year’s version of the WPA, by adding a limited private right of action to the bill.  The House Appropriations Committee passed the WPA as amended by the committee in a 19-14 vote on April 1, 2021.

This is Washington’s third consecutive attempt to pass the WPA.  Each year, the state Senate has overwhelmingly passed its version of the WPA.  None of the Senate versions have contained private rights of action.  This has been the sticking point, and it remains so.  In 2019 the WPA bill stalled in committee and was never brought to the House floor for a vote, with disagreements over enforcement and a lack of a private right of action ultimately killing the legislation.  In 2020, the same disagreements resulted in the state House adding, among other things, a private right of action which would have allowed state citizens to sue for technical violations of the bill’s provisions.  When the conference committee failed to reconcile the House version of the bill with the version passed by the Senate, the WPA failed for a second time.  It seems likely history will repeat itself, again.

The private right of action added to the WPA this year differs from that contemplated in 2020.  The 2021 version allows consumer to seek injunctive relief from a business, but only if a violation occurs under the act’s consumer right section (which includes rights of access, deletion, correction, portability and the right to opt out of targeted marketing and certain profiling activities) or its anti-discrimination section. No monetary damages can be pursued by consumers.

Opposition to the WPA continues from both the consumer and business sectors.  Consumer advocacy groups, including the ACLU of Washington, have objected to the current Senate version of the WPA, believing it fails to provide consumers with meaningful privacy protections in the absence of a private right to sue for monetary damages when violations occur. The business community’s opposition is based in the idea that a private right of action will open the “flood gates” of litigation, raising a business’ costs as it defends against frivolous consumer litigation.

In the broader context of other state’s privacy laws, the private right of action in the current version of the WPA is broader than both the California Consumer Privacy Act’s (“CCPA’s”) limited right to bring private suit if a business fails to implement reasonable security measures, and the newly enacted Virginia privacy law, which does not allow for any private rights of action.   

Stay tuned as the bill heads to the House floor for full vote.  If the current version of the WPA passes the House, the Senate must decide whether it will concur or reject the House amendments. 

Find the latest on the WPA act’s progress and the text of the bill here:  https://app.leg.wa.gov/billsummary?BillNumber=5062&Year=2021&Initiative=False