The Senate Committee on Environment, Energy and Technology today heard Senate Bill 6281, relating to the management and oversight of personal data. Its prime sponsor is the Chairman of the Committee, Senator Reuven Carlyle (D-36-Seattle).

I had the pleasure of testifying on behalf of Washington Retail and its members. Twenty-five other associations and businesses also testified during the hour and a half hearing.

My comments focused on the desire of retailers to earn and maintain trusted relationships with their customers. Customers expect retailers to protect the information they share and to use it in a responsible manner to connect them with the products and services they seek.

Senator Carlyle’s bill ensures that obligations to protect personal information extend to all businesses that come in contact with that data.

Moving forward, we seek four improvements to the bill to ensure compliance and our full support.

• Liability: to ensure that all businesses are accountable for meeting their obligations to protect consumer information, and to align with the allocation of those obligations in section 5. We believe it is important to adhere to the principles of comparative fault when allocating liability and to not allow those principles to be overridden by contract.
• Loyalty Programs: We are committed to ensuring that consumers have choices and are in control of their interactions with retailers. One key option that many consumers choose to participate in are retail loyalty programs.
• These programs offer discounts and other benefits for consumers who voluntarily participate. But they also often require the retention, and in some cases, sharing of personal information in order to provide those benefits and a consumer choice. To exercise certain rights under this Act would make offering those benefits impractical or impossible.
• Unfortunately, as written, the new anti-discrimination language that prohibits different pricing or service levels for those who exercise their rights would jeopardize the retailer’s ability to offer voluntary loyalty programs that are popular with, and beneficial to, consumers.
• Thus, we urge that this new language either be removed or amended to ensure that consumer loyalty programs can continue to be offered by retailers.
• Consumer Rights Requests: Consumers must have a secure and reliable means of submitting a request to exercise their rights. The risk of compromising the personal information consumers provide to verify their request or the personal information controllers provide back in response to a request, necessitates a well-defined process. We believe Section 6 should be amended to make it clear that controllers have a duty to define and clearly communicate to consumers appropriate and easy-to-use means of submitting requests.
• Facial Recognition: We believe that facial recognition raises important issues. At the same time, if deployed in a transparent manner that respects consumers’ rights, this emerging and developing technology offers the promise of enormous benefits of safety and convenience for consumers and retailers. Given the complexity of the issues and the fact that this remains an emerging and developing technology, we believe it might best be addressed in a separate piece of legislation. Whether as part of this bill or as a separate vehicle, we have some suggestions for striking the right balance and improving the effectiveness of the language regarding this important technology.

WR will continue to work closely with Senator Carlyle and all stakeholders to craft the best bill possible for the citizens and businesses of Washington State that can be used as a model by other states, and eventually, nationally.