CLEANUP IN AISLE ADPPA
A comprehensive, preemptive, federal privacy law that creates a single set of rules for the United States is a once in a generation effort that will have a lasting impact for decades and is long overdue. The drafters of such a bill, the American Data Privacy and Protection Act (ADPPA), should not force companies and courts down the road to guess what the text means. Given the very limited and narrow rulemaking authority granted to the Federal Trade Commission in the draft ADPPA, it’s even more incumbent on Congress to get the text right so that, on a mechanical level at least, the draft ADPPA’s directives can be followed and enforced.
A tremendous amount of work went into drafting the ADPPA. It’s an impressive bipartisan effort on an important and timely issue. The most recent version of the draft ADPPA, however, is difficult to interpret and if enacted into law would be challenging to implement and enforce. This comment is not a criticism of substantive decisions or policy compromises but rather an observation that in many places the text of the draft ADPPA deviates from basic standards for sound legislative drafting, producing an incoherent framework. The draft ADPPA is riddled with vague and ambiguous definitions, undefined terms, inconsistent and imprecise use of different words for the same or similar ideas, and overused, vague modifiers (reasonably, serious, significant, substantial, etc.). All this ambiguity and uncertainty will cause endless legal difficulties, make compliance a guessing game, add to the administrative burden on the Federal Trade Commission and state agencies, hinder enforcement, and undermine the important new rights granted to consumers. I do not want the landmark ADPPA to be bogged down in courts for years as judges attempt to divine the intent of Congress.
My goal is not to slam the draft ADPPA, fuel opposition, or derail the legislative effort. To the contrary, I want Members of Congress and stakeholders to redouble their efforts to clarify the language. The good news is that there’s plenty of time if Members of Congress and stakeholders roll up their sleeves and take out their pens. Drafting federal legislation is an arduous task, more difficult than most people appreciate. Guidelines, standards, and conventions for legislative drafting help achieve consistency from statute to statute, making federal laws, at least in theory, easier to read, understand, and follow. These best practices start with the notion that federal laws be “written in plain English for real people.” Although the enacted ADPPA primarily will be read by lawyers and lobbyists, not real people, it still needs significant work if the framework is going to work. Now is the time to complete a line-by-line, word-by-word review of each provision so that the legislative language—the black and white text on the page—is as clear as possible and does what people believe it is intended to do. My article “Cleanup in Aisle ADPPA” has greater detail on making the draft ADPPA clearer.