++Dark matter, unexplained. +
++If you go outside on a dark night, in the darkest places on Earth, you can see as many as 9,000 stars. They appear as tiny points of light, but they are massive infernos. And while these stars seem astonishingly numerous to our eyes, they represent just the tiniest fraction of all the stars in our galaxy, let alone the universe. +
++The beautiful challenge of stargazing is keeping this all in mind: Every small thing we see in the night sky is immense, but what’s even more immense is the unseen, the unknown. +
++I’ve been thinking about this feeling — the awesome, terrifying feeling of smallness, of the extreme contrast of the big and small — while reporting on one of the greatest mysteries in science for Unexplainable, a brand new Vox podcast about unanswered questions in science. You can listen to the episode below (and subscribe wherever you listen to podcasts!). +
++It turns out all the stars in all the galaxies, in all the universe, barely even begin to account for all the stuff of the universe. Most of the matter in the universe is actually unseeable, untouchable, and, to this day, undiscovered. +
++Scientists call this unexplained stuff “dark matter,” and they believe there’s five times more of it in the universe than normal matter — the stuff that makes up you and me, stars, planets, black holes, and everything we can see in the night sky or touch here on Earth. It’s strange even calling all that “normal” matter, because in the grand scheme of the cosmos, normal matter is the rare stuff. But to this day, no one knows what dark matter actually is. +
++“I think it gives you intellectual and kind of epistemic humility — that we are simultaneously, super insignificant, a tiny, tiny speck of the universe,” Priya Natarajan, a Yale physicist and dark matter expert, said on a recent phone call. “But on the other hand, we have brains in our skulls that are like these tiny, gelatinous cantaloupes, and we have figured all of this out.” +
++The story of dark matter is a reminder that whatever we know, whatever truth about the universe we have acquired as individuals or as a society, is insignificant compared to what we have not yet explained. +
++It’s also a reminder that, often, in order to discover something true, the first thing we need to do is account for what we don’t know. +
++This accounting of the unknown is not often a thing that’s celebrated in science. It doesn’t win Nobel Prizes. But, at least, we can know the size of our ignorance. And that’s a start. +
++But how does it end? Though physicists have been trying for decades to figure out what dark matter is, the detectors they built to find it have gone silent year after year. It makes some wonder: Have they been chasing a ghost? Dark matter might not be real. Instead, there could be something more deeply flawed in physicists’ understanding of gravity that would explain it away. Still, the search, fueled by faith in scientific observations, continues, despite the possibility that dark matter may never be found. +
++To learn about dark matter is to grapple with, and embrace, the unknown. +
++The woman who told us how much we don’t know +
++Scientists are, to this day, searching for dark matter because they believe it is there to find. And they believe so largely because of Vera Rubin, an astronomer who died in 2016 at age 88. +
++Growing up in Washington, DC, in the 1930s, like so many young people getting started in science, Rubin fell in love with the night sky. +
++Rubin shared a bedroom and bed with her sister Ruth. Ruth was older and got to pick her favorite side of the bed, the one that faced the bedroom windows and the night sky. +
++“But the windows captivated Vera’s attention,” Ashley Yeager, a journalist writing a forthcoming biography on Rubin, says. “Ruth remembers Vera constantly crawling over her at night, to be able to open the windows and look out at the night sky and start to track the stars.” Ruth just wanted to sleep, and “there Vera was tinkering and trying to take pictures of the stars and trying to track their motions.” +
++Not everyone gets to turn their childlike wonder and captivation of the unknown into a career, but Rubin did. +
++Flash-forward to the late 1960s, and she’s at the Kitt Peak National Observatory near Tucson, Arizona, doing exactly what she did in that childhood bedroom: tracking the motion of stars. +
++This time, though, she has a cutting-edge telescope and is looking at stars in motion at the edge of the Andromeda Galaxy. Just 40 years prior, Edwin Hubble had determined, for the first time, that Andromeda was a galaxy outside of our own, and that galaxies outside our own even existed. With one observation, Hubble doubled the size of the known universe. +
++By 1960, scientists were still asking basic questions in the wake of this discovery. Like: How do galaxies move? +
++Rubin and her colleague Kent Ford were at the observatory doing this basic science, charting how stars are moving at the edge of Andromeda. “I guess I wanted to confirm Newton’s laws,” Rubin said in an archival interview with science historian David DeVorkin. +
+/cdn.vox-cdn.com/uploads/chorus_asset/file/22050865/GettyImages_635841992.jpg)
Alan Dyer/Universal Images Group/Getty Images
++Per Newton’s equations, the stars in the galaxy ought to move like the planets in our solar system do. Mercury, the closest planet to the sun, orbits very quickly, propelled by the sun’s gravity to a speed of around 106,000 mph. Neptune, far from the sun, and less influenced by its gravity, moves much slower, at around 12,000 mph. +
++The same thing ought to happen in galaxies too: Stars near the dense, gravity-rich centers of galaxies ought to move faster than the stars along the edges. +
++But that wasn’t what Rubin and Ford observed. Instead, they saw that the stars along the edge of Andromeda were going the same speed as the stars in the interior. “I think it was kind of like a ‘what the fuck’ moment,” Yeager says. “It was just so different than what everyone had expected.” +
+/cdn.vox-cdn.com/uploads/chorus_asset/file/22050933/galaxy_curves_smaller.gif)
Ingo Berg/Wikipedia
++The data pointed to an enormous problem: The stars couldn’t just be moving that fast on their own. +
++At those speeds, the galaxy should be ripping itself apart like an accelerating merry-go-round with the brake turned off. To explain why this wasn’t happening, these stars needed some kind of extra gravity out there acting like an engine. There had to be a source of mass for all that extra gravity. (For a refresher: Physicists consider gravity to be a consequence of mass. The more mass in an area, the stronger the gravitational pull.) +
++The data suggested that there was a staggering amount of mass in the galaxy that astronomers simply couldn’t see. “As they’re looking out there, they just can’t seem to find any kind of evidence that it’s some normal type of matter,” Yeager says. It wasn’t black holes; it wasn’t dead stars. It was something else generating the gravity needed to both hold the galaxy together and propel those outer stars to such fast speeds. +
++“I mean, when you first see it, I think you’re afraid of being … you’re afraid of making a dumb mistake, you know, that there’s just some simple explanation,” Rubin later recounted. Other scientists might have immediately announced a dramatic conclusion based on this limited data. But not Rubin. She and her collaborators dug in and decided to do a systematic review of the star speeds in galaxies. +
++Rubin and Ford weren’t the first group to make an observation of stars moving fast at the edge of a galaxy. But what Rubin and her collaborators are famous for is verifying the finding across the universe. “She [studied] 20 galaxies, and then 40 and then 60, and they all show this bizarre behavior of stars out far in the galaxy, moving way, way too fast,” Yeager explains. +
++This is why people say Rubin ought to have won a Nobel Prize (the prizes are only awarded to living recipients, so she will never win one). She didn’t “discover” dark matter. But the data she collected over her career made it so the astronomy community had to reckon with the idea that most of the mass in the universe is unknown. +
++By 1985, Rubin was confident enough in her observations to declare something of an anti-eureka: announcing not a discovery, but a huge absence in our collective knowledge. “Nature has played a trick on astronomers,” she’s paraphrased as saying at an International Astronomical Union conference in 1985, “who thought we were studying the universe. We now know that we were studying only a small fraction of it.” +
++To this day, no one has “discovered” dark matter. But Rubin did something incredibly important: She told the scientific world about what they were missing. +
++In the decades since this anti-eureka, other scientists have been trying to fill in the void Rubin pointed to. Their work isn’t complete. But what they’ve been learning about dark matter is that it’s incredibly important to the very structure of our universe, and that it’s deeply, deeply weird. +
++Dark matter isn’t just enormous. It’s also strange. +
++Since Rubin’s WTF moment in the Arizona desert, more and more evidence has accumulated that dark matter is real, and weird, and accounts for most of the mass in the universe. +
++“Even though we can’t see it, we can still infer that dark matter is there,” Kathryn Zurek, a Caltech astrophysicist, explains. “Even if we couldn’t see the moon with our eyes, we would still know that it was there because it pulls the oceans in different directions — and it’s really very similar with dark matter.” +
++Scientists can’t see dark matter directly. But they can see its influence on the space and light around it. The biggest piece of indirect evidence: Dark matter, like all matter that accumulates in large quantities, has the ability to warp the very fabric of space. +
++“You can visualize dark matter as these lumps of matter that create little potholes in space-time,” Natarajan says. “All the matter in the universe is pockmarked with dark matter.” +
++When light falls into one of these potholes, it bends like light does in a lens. In this way, we can’t “see” dark matter, but we can “see” the distortions it produces in astronomers’ views of the cosmos. From this, we know dark matter forms a spherical cocoon around galaxies, lending them more mass, which allows their stars to move faster than what Newton’s laws would otherwise suggest. +
+/cdn.vox-cdn.com/uploads/chorus_asset/file/22053291/heic1506f.jpg)
NASA, ESA, D. Harvey (École Polytechnique Fédérale de Lausanne, Switzerland), R. Massey (Durham University, UK), Harald Ebeling (University of Hawaii at Manoa) and Jean-Paul Kneib (LAM)
++These are indirect observations, but they have given scientists some clues about the intrinsic nature of dark matter. It’s not called dark matter because of its color. It has no color. It’s called “dark” because it neither reflects nor emits light, nor any sort of electromagnetic radiation. So we can’t see it directly even with the most powerful telescopes. +
++Not only can we not see it, we couldn’t touch it if we tried: If some sentient alien tossed a piece of dark matter at you, it would pass right through you. If it were going fast enough, it would pass right through the entire Earth. Dark matter is like a ghost. +
++Here’s one reason physicists are confident in that weird fact. Astronomers have made observations of galaxy clusters that have slammed into one another like a head-on collision between two cars on the highway. +
++Astronomers deduced that in the collision, much of the normal matter in the galaxy clusters slowed down and mixed together (like two cars in a head-on collision would stop one another and crumple together). But the dark matter in the cluster didn’t slow down in the collision. It kept going, as if the collision didn’t even happen. +
++The event is recreated in this animation. The red represents normal matter in the galaxy clusters, and the blue represents dark matter. During the collision, the blue dark matter acts like a ghost, just passing through the normal colliding matter as if it weren’t there. +
+/cdn.vox-cdn.com/uploads/chorus_asset/file/22051458/bullet_cluster_gif.gif)
John Wise of the Kavli Institute for Particle Astrophysics and Cosmology
++(A note: These two weird aspects of dark matter — its invisibility and its untouchability — are connected: Dark matter simply does not interact with the electromagnetic force of nature. The electromagnetic force lights up our universe with light and radiation, but it also makes the world feel solid.) +
++A final big piece of evidence for dark matter is that it helps physicists make sense of how galaxies formed in the early universe. “We know that dark matter had to be present to be part of that process,” astrophysicist Katie Mack explains. It’s believed dark matter coalesced together in the early universe before normal matter did, creating gravitational wells for normal matter to fall into. Those gravitational wells formed by dark matter became the seeds of galaxies. +
++So dark matter not only holds galaxies together, as Rubin’s work implied — it’s why galaxies are there in the first place. +
++So: What is it? +
++To this day, no one really knows what dark matter is. +
++Scientists’ best guess is that it’s a particle. Particles are the smallest building blocks of reality — they’re so small, they make up atoms. It’s thought that dark matter is just another one of these building blocks, but one we haven’t seen up close for ourselves. (There are a lot of different proposed particles that may be good dark matter candidates. Scientists still aren’t sure exactly which one it will be.) +
++You might be wondering: Why can’t we find the most common source of matter in all the universe? Well, our scientific equipment is made out of normal matter. So if dark matter passes right through normal matter, trying to find dark matter is like trying to catch a ghost baseball with a normal glove. +
++Plus, while dark matter is bountiful in the universe, it’s really diffuse. There are just not massive boulders of it passing nearby Earth. It’s more like we’re swimming in a fine mist of it. “If you add up all the dark matter inside humans, all humans on the planet at any given moment, it’s one nanogram,” Natarajan says — teeny-tiny. +
++Dark matter may never be “discovered,” and that’s okay +
++Some physicists favor a different interpretation for what Rubin observed, and for what other scientists have observed since: that it’s not that there’s some invisible mass of dark matter dominating the universe, but that scientists’ fundamental understanding of gravity is flawed and needs to be reworked. +
++While “that’s a definite possibility,” Natarajan says, currently, there’s a lot more evidence on the side of dark matter being real and not just a mirage based on a misunderstanding of gravity. “We would need a new theory [of gravity] that can explain everything that we see already,” she explains. “There is no such theory that is currently available.” +
+/cdn.vox-cdn.com/uploads/chorus_asset/file/22071954/galaxy_cluster_cl_0024_17_zwcl_0024_1652.jpg)
NASA, ESA, M.J. Jee and H. Ford (Johns Hopkins University)
++It’s not hard to believe in something invisible, Mack says, if all the right evidence is there. We do it all the time. +
++“It’s similar to if you’re walking down the street,” she says. “And as you’re walking, you see that some trees are kind of bending over, and you hear some leaves rustling and maybe you see a plastic bag sort of floating past you and you feel a little cold on one side. You can pretty much figure out there’s wind. Right? And that wind explains all of these different phenomena. … There are many, many different pieces of evidence for dark matter. And for each of them, you might be able to find some other explanation that works just as well. But when taken together, it’s really good evidence.” +
++Meanwhile, experiments around the world are trying to directly detect dark matter. Physicists at the Large Hadron Collider are hoping their particle collisions may one day produce some detectable dark matter. Astronomers are looking out in space for more clues, hoping one day dark matter will reveal itself through an explosion of gamma rays. Elsewhere, scientists have burrowed deep underground, shielding labs from noise and radiation, hoping that dark matter will one day pass through a detector they’ve carefully designed and make itself known. +
++But it hasn’t happened yet. It may never happen: Scientists hope that dark matter isn’t a complete ghost to normal matter. They hope that every once in a while, when it collides with normal matter, it does something really, really subtle, like shove one single atom to the side, and set off a delicately constructed alarm. +
++But that day may never come. It could be dark matter just never prods normal matter, that it remains a ghost. +
++“I really did get into this business because I thought I would be detecting this within five years,” Prisca Cushman, a University of Minnesota physicist who works on a dark matter detector, says. She’s been trying to find dark matter for 20 years. She still believes it exists, that it’s out there to be discovered. But maybe it’s just not the particular candidate particle her detector was initially set up to find. +
++That failure isn’t a reason to give up, she says. “By not seeing [dark matter] yet with a particular detector, we’re saying, ‘Oh, so it’s not this particular model that we thought it might be.’ And that is an extremely interesting statement. Because all of a sudden an army of theorists go out and say, ‘Hey, what else could it be?’” +
++But even if the dark matter particle is never found, that won’t discount all science has learned about it. “It’s like you’re on a beach,” Natarajan explains. “You have a lot of sand dunes. And so we are in a situation where we are able to understand how these sand dunes form, but we don’t actually know what a grain of sand is made of.” +
++Embracing the unknown +
++Natarajan and the other physicists I spoke to for this story are comfortable with the unknown nature of dark matter. They’re not satisfied, they want to know more, but they accept it’s real. They accept it because that’s the state of the evidence. And if new evidence comes along to disprove it, they’ll have to accept that too. +
++“Inherent to the nature of science is the fact that whatever we know is provisional,” Natarajan says. “It is apt to change. So I think what motivates people like me to continue doing science is the fact that it keeps opening up more and more questions. Nothing is ultimately resolved.” +
++That’s true when it comes to the biggest questions, like “what is the universe made of?” +
++It’s true in so many other areas of science, too: Despite the endless headlines that proclaim new research findings that get published daily, there are many more unanswered questions than answered. Scientists don’t really understand how bicycles stay upright, or know the root cause of Alzheimer’s disease or how to treat it. Similarly, at the beginning of the Covid-19 pandemic, we craved answers: Why do some people get much sicker than others, what does immunity to the virus look like? The truth was we couldn’t yet know (and still don’t, for sure). But that didn’t mean the scientific process was broken. +
++The truth is, when it comes to a lot of fields of scientific progress, we’re in the middle of the story, not the end. The lesson is that truth and knowledge are hard-won. +
++In the case of dark matter, it wasn’t that everything we knew about matter was wrong. It was that everything we knew about normal matter was insignificant compared to our ignorance about dark matter. The story of dark matter fits with a narrative of scientific progress that makes us humans seem smaller and smaller at each turn. First, we learned that Earth wasn’t the center of the universe. Now dark matter teaches us that the very stuff we’re made of — matter — is just a fraction of all reality. +
++If dark matter is one day discovered, it will only open up more questions. Dark matter could be more than one particle, more than one thing. There could be a richness and diversity in dark matter that’s a little like the richness and diversity we see in normal matter. It’s possible, and this is speculation, that there’s a kind of shadow universe that we don’t have access to — scientists label it the “dark sector” — that is made up of different components and exists, as a ghost, enveloping our galaxies. +
++It’s a little scary to learn how little we know, to learn we don’t even know what most of the universe is made out of. But there’s a sense of optimism in a question, right? It makes you feel like we can know the answer to them. +
++There’s so much about our world that’s arrogant: from politicians who only believe in what’s convenient for them to Silicon Valley companies that claim they’re helping the world while fracturing it, and so many more examples. If only everyone could see a bit of what Vera Rubin saw — a fundamental truth not just about the universe, but about humanity. +
++“In a spiral galaxy, the ratio of dark-to-light matter is about a factor of 10,” Rubin said in a 2000 interview. “That’s probably a good number for the ratio of our ignorance to knowledge. We’re out of kindergarten, but only in about third grade.” +
++
++
++
++
++
++
++What we don’t know is awesome. Let us explain. +
++I have a pot of purple shamrocks growing on my bedroom windowsill; every day, they do a sort of dance. Before the sun rises, the shamrocks stretch out their leaves toward the sky, as if to embrace the coming sunlight before it arrives. And in the evening, they pull their leaves in close to their stems, as if they were tucked in for sleep. +
++This day-night cycle is called nyctinasty and it’s a common behavior among plants. Recently, I was talking to a botanist who told me: No one really knows why these shamrocks, or any plant for that matter, does this daily dance. Charles Darwin himself wondered about it. Botanists still don’t know. +
++These shamrocks remind me that the world is still haunted by scientific mysteries. I think about them and I’m filled with wonder. Because for so many stories in science — plant stories, medical stories, space stories, environmental stories, and more — the truth is that we’re still in the middle of them. What we don’t know is still greater than what we do. +
++Today, we’re launching a new podcast at Vox in the spirit of embracing the unknown, and the great stories that are borne out of the endeavor. Unexplainable will explore the most interesting, crucial, and surprising unanswered questions in science. +
++The show premieres with two episodes and we’ll release weekly episodes every Wednesday. Unexplainable will also be available on Vox.com, where you can find new episodes and related stories. +
++Our first episode examines one of the biggest mysteries in the universe: dark matter. It’s the substance that holds galaxies together, but no one knows what it is exactly. +
++
++Our second episode is much more down to earth and the question is surprisingly unanswered: How, exactly, do our noses smell? We speak to scientists trying to figure this mystery out, as well as those who are charging ahead with building robot noses, despite not completely understanding how human ones work. +
++
++And in the coming weeks we’ll tell you about more mysteries big and small: stories set deep beneath the Earth, inside people’s homes, at the edge of the solar system, in our bodies, and more. +
++Why this show. Why now. +
++We hope the show can foster intellectual humility, make individuals curious about what they don’t know, and, perhaps, help inspire some to become the ones who help fill in the gaps. +
++The past few years have laid bare the destructive warping power of misinformation, of conspiratorial thinking, of climate change denial, of public opinions borne out of spite instead of conviction. Because of technology, it’s never been easier to disseminate lies to ears willing to hear them. +
++A show about where knowledge comes from can, simply, help. +
++Unexplainable is not about how scientists don’t know anything. Science has learned great, true, foundational things. But what we don’t still know is just massive. And not all unknowns are equally mysterious. There are many shades of “I don’t know” in science, from unanswered questions like “what is dark matter” to smaller gaps in knowledge, like how scientists are not quite sure if climate change is leading to an increased frequency of severe winter weather events. +
++In developing this show, we are also aware that science has flaws. There’s long been gatekeeping in who gets to ask questions and whose answers are listened to. And the institutions of science sometimes reward flashy, here today gone tomorrow results over rigorous inquiry. In other words, science sometimes gets in its own way of answering questions. We’ll tell those stories, too. +
++But what we’ll keep coming back to is the spark that gets scientists going in the first place: curiosity. +
++I believe there’s optimism in a question. Why ask one if you don’t believe an answer is possible? Sometimes there can be frustration in a question. Sometimes longing. Sometimes just a fearsome, yet intoxicating, feeling of awe. +
++Everything starts with a question. And all questions start with the unknown. +
++So come join us, you beautiful curious minds. We’re going off the map. +
++
+Want to help us explore the unknown? Join the Unexplainable community! We’ll send you links to things we mentioned in the episode, ways to contribute to our reporting, and stories that spark your curiosity. To start, simply fill out this short Google form or sign up here. +
++Subscribe now to Unexplainable wherever you listen to podcasts, including Apple Podcasts, Spotify, and Google Podcasts. +
++
++
++
++Rep. Suzan DelBene is the first of several lawmakers to introduce necessary privacy legislation this year. +
+/cdn.vox-cdn.com/uploads/chorus_asset/file/19433750/open_sourced_story_logo.png){kind=logo}
++Is 2021 the year we’ll finally get a federal consumer privacy law? Barring another worldwide disaster, all signs point to yes — or at the very least, some significant progress toward one. Several senators and representatives who introduced privacy bills in previous sessions told Recode that they will be reintroducing their bills in the months to come. First up is Rep. Suzan DelBene (D-WA), who is introducing her Information Transparency and Personal Data Control Act on Wednesday. +
++“We need for folks to understand how critically important privacy is,” DelBene told Recode. “Not only domestically for consumer rights, but how we’re going to have more and more challenges internationally if we don’t address privacy.” +
++On a consumer-facing level, DelBene’s bill would require businesses and websites to get users’ permission before sharing their sensitive personal data, including things like Social Security numbers, location, sexual orientation, immigration status, and health information. It would also give users the ability to opt out of the collection, use, or sharing of non-sensitive personal data. Companies collecting data would have to tell users if and why their information is being shared, as well as the categories of third parties with whom it’s being shared. Finally, businesses and websites would have to provide clear and understandable privacy policies, written in “plain language,” as DelBene calls it. +
++“We’re focused on opt-in so that privacy is the default,” she said. +
++Behind the scenes, businesses would have to submit to a privacy audit every two years, and state attorneys general and the Federal Trade Commission (FTC) would have enforcement powers — with the latter given significant resources and authority to enforce the law and create additional regulations as it sees fit. +
++“Enforcement is key,” DelBene added. “We can have a privacy policy, but if we don’t have somebody who’s going to be in charge of enforcing it and setting and continuing to make sure that we have strong rules? … That’s obviously critical.” +
++DelBene’s bill will likely kick off a new round of attempts to pass a consumer privacy law in this new congressional session. Over the years, the Senate and House commerce committees have held hearings on consumer privacy, and several members of Congress in both houses and from both parties have proposed bills. Both sides recognize the need for a law. And yet, we have no law. +
++Meanwhile, the need for such a law has never been greater. Americans spent more time online than ever during the pandemic, giving their valuable data to a variety of platforms and services that operate with few rules beyond those they make for themselves. These platforms — Facebook and Google chief among them — grow wealthier and more powerful every day, thanks to the virtual mountains of data they collect from billions of people around the world. +
++Meanwhile, other countries and states have started to enact their own data privacy laws. The European Union has the General Data Protection Regulation (GDPR). India and China are proposing their own privacy laws, Californians have their Consumer Protection Act (CCPA) and the Privacy Rights Act (CPRA), and Virginia just passed the Consumer Data Protection Act (CDPA). Several other states are considering their own, including DelBene’s home state, Washington. So the lack of a federal privacy law makes the United States look like an outlier. +
++“Having the US absent from that discussion, where it’s the largest economy in the world — and certainly the leader in technology — is just amiss,” Omer Tene, vice president and chief knowledge officer of the International Association of Privacy Professionals, a nonpartisan membership organization, told Recode. +
++A consumer privacy bill from a former tech executive +
++DelBene has been the representative for Washington’s First Congressional District since 2012. Before that, she was an executive at several tech companies, from small startups to the very large Microsoft. So she knows business, she knows tech, and she uses that background to inform some of her legislation and initiatives. +
++As a member of Congress, DelBene has pushed for the Public Health Emergency Privacy Act, which would strengthen health privacy protections related to the pandemic, and the Email Privacy Act, which would force law enforcement to get a warrant for emails from third-party providers (currently, they only have to get a warrant for emails that are fewer than 180 days old). She’s also sponsored bills about smart cities, ebooks, telehealth, the Internet of Things, and virtual currency. +
++DelBene’s previous attempts to introduce the Information Transparency and Personal Data Control Act in the last two Congresses didn’t go anywhere. Her latest version has a few changes but isn’t radically different from its forebears. The big difference this time around is that we now have a Democratic-majority House and Senate that makes passing consumer privacy legislation — or any legislation, really — seem much more possible. The real question is what that law will include. +
++“Largely, this is a bipartisan issue, which is room for optimism that [a privacy bill] can pass,” Tene said. “This is a topic that they can find convergence on.” +
++DelBene’s bill, which has elements that appeal to both parties, might be a place to find that convergence. DelBene is the chair of the New Democrat Coalition, a caucus of nearly 100 moderate Democrats, and her bill reflects those centrist leanings. It’s more business-friendly than other Democrats’ bills, and in the two areas that Republicans and Democrats are the furthest apart — preemption, which is states’ rights to pass their own, stronger privacy laws; and private right of action, which is consumers’ rights to sue companies if they think their privacy rights have been violated — DelBene’s bill is more on the right-leaning side of things than the left. That said, previous iterations of her bill have had the support of many Democrats (last time, she ended up with 34 co-sponsors) and the endorsement of the New Democrat Coalition. +
++DelBene said she’s hopeful she’ll even get at least one Republican co-sponsor on the bill this time around. +
++“We still have work to do to make that happen,” she said. “So we’re going to keep working with everyone.” +
++Where the bill may lose some Democrats (and probably more than a few privacy and consumer advocates) +
++But the Information Transparency and Personal Data Control Act is missing some things that many privacy and consumer advocates consider to be essential. While it does give consumers the power to opt into the sharing and selling of some types of their data — considered to be a more privacy-forward approach than forcing consumers to do the work to opt out of everything — the bill does not explicitly give consumers the right to access, change, or delete the information a company has collected about them. Those are rights that CCPA and GDPR grant, so it’s conspicuously absent from DelBene’s bill. +
++There is also the question of preemption and private right of action. DelBene’s bill would preempt state laws and bar private right of action, which tends to align more with Republicans’ interests than Democrats’. +
++On the first point, DelBene is unequivocal: A federal privacy law must be preemptive. +
++“How does it work if you have a patchwork [of state laws] for your average user, and how does it work for a small business?” DelBene said. “And shouldn’t we have a strong federal law so that people’s rights are protected everywhere in the country, and that we’re bringing that strong point of view to the international table?” +
++This approach would be nice for big businesses, too, which is why they’ve called for a preemptive federal law; only having to deal with one (ideally weak) law is much easier for them than having to anticipate and adjust to a barrage of constantly evolving rules from 50 states. +
++There is an exception to preemption in DelBene’s bill: biometric laws. So Illinois’s Biometric Information Privacy Act, which says businesses must get user permission before collecting their biometric data — such as using facial recognition — wouldn’t be touched. +
++But preemptive bills have an increasingly tall hurdle to overcome as more states adopt privacy laws and their residents get rights that a weaker preemptive federal law would then take away. For instance, the American Prospect’s scathing assessment of DelBene’s bill’s previous iteration called it a “privacy bill, minus the privacy” which would take Californians’ CCPA rights away and give them “next to nothing” in return. +
++There’s also no private right of action in DelBene’s bill, which means that consumers won’t be able to sue businesses if they feel their rights have been violated. State attorneys general and the FTC will be the only parties that can go after those businesses. Private right of action proponents point out that attorneys general and the FTC don’t always have the time or resources to enforce privacy laws, so an extra measure of accountability is necessary. Businesses really don’t like private right of action because it opens them up to lots of expensive lawsuits. +
++But private right of action can be a difficult sell. Even the CCPA was watered down to only grant it for cases where sensitive personal data was exposed because a business didn’t take adequate security precautions to protect it. Virginia’s CDPA doesn’t have it, and the question of whether to include it has delayed Washington state’s attempt to pass its own. +
++Cameron Kerry, a fellow at the Brookings Institution’s Center for Technology Innovation and co-author of the “Bridging the gaps: A path forward to federal privacy legislation” report, thinks we’ll ultimately see a federal privacy law that compromises on both private right of action and preemption. +
++“I think it is sinking in with the industry that it’s probably going to take some kind of private right of action to get legislation passed,” Kerry told Recode. “I think it is sinking in with people who oppose preemption of state laws that it’s also going to take some significant preemption to get a bill passed.” +
++DelBene’s solution to the lack of private right of action is a significantly beefed-up FTC, with $350 million in funding and an additional 500 full-time employees who will focus on data privacy and security. That’s a major boost, considering that the FTC currently has about 1,100 full-time employees who are spread across its multiple areas of enforcement (with just 40 to 45 of them in its Division of Privacy and Identity Protection). And the bill gives the FTC the authority to make future regulations that could strengthen or adjust the law, rather than waiting years — even decades — for Congress to act and pass new legislation. +
++“It’s important that we have the enforcement and rule-making authority to address any issues that arise or something we didn’t catch,” DelBene said. +
++At least one privacy advocacy group isn’t quite sold on that reasoning, however. +
++“We’d rather Congress enact privacy safeguards by statute, as opposed to Congress empower an agency to enact privacy safeguards by regulation,” Adam Schwartz, senior staff attorney at the Electronic Frontier Foundation, told Recode. +
++The Information Transparency and Personal Data Control Act will soon have more progressive competition +
++DelBene’s bill is the first consumer privacy bill to come out this year, but it won’t be the last. Several have been introduced over the years, all with their own particular quirks. The office of Sen. Kirsten Gillibrand (D-NY) told Recode that she’s planning to reintroduce her Data Protection Act, which would establish an agency charged with creating and enforcing privacy regulations. Ohio Democratic Sen. Sherrod Brown’s office told Recode that he intends to introduce a 2021 version of his Data Accountability and Transparency Act, which he released in draft form last year. Brown’s bill does away with consumer consent entirely by making the legal default that no personal data is collected, used, or shared at all. +
++And Sen. Ron Wyden (D-OR) will also be coming out with a new version of his 2019 Mind Your Own Business Act, the previous version of which included the creation of a national “do not track” system, gave the FTC to power to levy stiff fines for first-time offenses, called for prison time for company executives who lied to the FTC, and gave users access to the data companies have collected on them. +
++“Yes, I’ll be reintroducing the Mind Your Own Business Act,” Wyden told Recode. “I plan to work closely with my colleagues to move comprehensive privacy legislation.” +
++There have also been bills from Reps. Zoe Lofgren and Anna Eshoo (both D-CA) and Sen. Jerry Moran (R-KS) that could come back this year, and the Senate commerce committee’s Democrats, led by Washington’s Sen. Maria Cantwell, and Republicans, led by Mississippi’s Sen. Roger Wicker, may reintroduce their bills. A bipartisan bill from the commerce committee could have the best chance of succeeding out of all of them, but that’s been a nonstarter so far. +
++So after too many years of too little action on consumer privacy legislation, lawmakers might find themselves with an embarrassment of riches. DelBene’s bill might stick out for its bipartisan appeal. Or, with a Democratic majority now in both houses, a more progressive bill might have a better shot. What is clear now is that we need a law, and the sooner the better. DelBene’s is one of what will be many, and it’s a relatively short and simple bill with room to build on, which gives the FTC the power to do just that. +
++“I wrote this bill as being very foundational,” DelBene said. “We do need to expand beyond this. … If we don’t have fundamental privacy policy, then how are we going to address all the issues that are built on top of that? So we really are starting out making sure that we’re building the infrastructure we need to make sure we’re protecting consumer rights in the digital world.” +
++Open Sourced is made possible by Omidyar Network. All Open Sourced content is editorially independent and produced by our journalists. +