At the Volokh Conspiracy, Stewart Baker alerts of a draft bill titled, “The American Privacy Rights Act of 2024,” jointly authored by Senator Maria Cantwell (D., Wash.) and Representative Cathy McMorris Rodgers (R., Wash.). I leave it to others to state whether the privacy portions of the draft bill are worthwhile, but Baker notes that the civil rights portions of the bill appear to give universities a green light to, once again, engage in racial discrimination under the guise of “diversity” (thereby restoring the pre-SFFA v. Harvard regime) and embedding “disparate impact” analysis in a broad swath of American life. Section 13 of the draft bill provides:
- A covered entity or a service provider may not collect, process, retain, or transfer covered data in a manner that discriminates in or otherwise makes unavailable the equal enjoyment of goods or services on the basis of race, color, religion, national origin, sex, or disability . . .
- This subsection shall not apply to . . . diversifying an applicant, participant, or customer pool.
Further, “a large data holder that uses a covered algorithm in a manner that poses a consequential risk of a harm identified . . . shall conduct an impact assessment.” The harms in question include;
- Making or facilitating advertising for, or determining access to, or restrictions on the use of housing, education, employment, health care, insurance, or credit opportunities.
- Determining access to or restrictions on the use of any place of public accommodation, particularly as such harms relate to the protected characteristics of individuals, including race, color, religion, national origin, sex, or disability.
- Disparate impact on the basis of individuals’ race, color, religion, national origin, sex, or disability status.
- Disparate impact on the basis of individuals’ political party registration status.
The bill would establish a new bureau within the FTC to enforce its provisions.
For an in-depth discussion of the proposed bill read Baker’s post.