California driving Internet privacy policy

by Michelle Quinn, Politico

With the federal government and technology policy shut down in Washington, California is steaming ahead with a series of online privacy laws that will have broad implications for Internet companies and consumers.

In recent weeks, Democratic Gov. Jerry Brown has signed a litany of privacy-related legislation, including measures to create an “eraser button” for teens, outlaw online “revenge porn” and make Internet companies explain how they respond to consumer Do Not Track requests.

The burst of activity is another sign that the Golden State — home to Google, Facebook and many of the world’s largest tech companies — is setting the agenda for Internet regulation at a time when the White House and Congress are moving at a much more glacial pace.

“We are all watching what is going on in Washington, D.C., with great concern that our colleagues are not able to get very much done,” said California Senate Majority Leader Ellen Corbett, a Democrat. “Elected officials in California have embraced the issue of online privacy as an important matter to their constituents.”

California’s legislative moves contrast with Washington, where much privacy legislation has stalled. An online Do Not Track bill from Senate Commerce, Science and Transportation Committee Chairman Jay Rockefeller (D-W.Va.) has failed to advance this year. Previous measures, including a 2011 online privacy bill from then-Sen. John Kerry (D-Mass.) and Sen. John McCain (R-Ariz.), have also stalled.

The state’s efforts have delighted privacy activists frustrated with the lack of federal action. As home to more than 10 percent of the nation’s population and the headquarters of major companies, the state has often been able to drive the national debate on environmental policy and other issues from Sacramento.

“Once again California is taking the lead, which is not surprising when you consider how dysfunctional Congress has become,” said John Simpson, director of Consumer Watchdog’s Privacy Project.

California’s new “eraser button” law gives teens the right to delete social-media posts and prohibits certain types of advertising from targeting them. The “revenge porn” measure makes it a misdemeanor for people to post indecent photos or videos of ex-lovers online. Another law requires websites to detail how they respond to Do Not Track signals sent from users’ browsers.

Brown also signed two data-breach laws. One from Corbett requires website operators to notify consumers of a security breach that involves information like user names and passwords. Another requires local government agencies to notify residents of personal data breaches.

Not everyone wants to see California become the nation’s laboratory for online privacy laws. Congress, some say, is better suited to grapple with the issues, and federal lawmakers’ go-slow approach reflects widespread concern that regulating the Internet could harm the nation’s most innovative companies.

“California seems like it is willing to declare the Internet its own private fiefdom and rule it with its own privacy fist,” said Adam Thierer, a senior research fellow at the Mercatus Center at George Mason University.

Internet companies and their trade groups have gone to Sacramento to argue against specific bills, saying they would hurt the state’s thriving tech sector.

Amid intense industry lobbying earlier this year, Bonnie Lowenthal, a Democratic state Assembly member, pulled her bill, known as the Right to Know Act. The measure would have required companies to disclose to users, upon request, all of the personal information collected on them and which data have been shared with other businesses. She has vowed to reintroduce it next year.

In 2011, Corbett sparked tech industry opposition with a social networking privacy bill. The measure would have made Facebook and other social networks remove, upon request, personal information of users younger than 18 or face civil penalties. It failed to pass the Senate that year. Corbett has since reintroduced a narrower version of the measure, which cleared the state Senate and awaits action in the state Assembly. Tech companies continue to oppose the bill.

Some California lawmakers say they’re just trying to meet the needs of voters.

“We have a culture in this state that not only appreciates innovation but also appreciates individual privacy,” said Al Muratsuchi, a Democratic state Assembly member and author of the new Do Not Track transparency law. Lawmakers don’t want to hurt the tech industry by upending business models, he said, but “Californians clearly care about individual privacy and we will continue to explore individual opportunities to balance those interests.”

California Attorney General Kamala Harris has also been actively involved in the privacy push, sending letters to 100 mobile-app developers telling them they need privacy policies that comply with California law. She has sued Delta Air Lines, alleging it does not having a privacy policy on its Fly Delta mobile app.

It’s not clear whether the state’s privacy campaign will revive action at the federal level.

The White House has been working on consumer privacy legislation based on a blueprint it released last year and is trying to build support in Congress. Sen. Ed Markey (D-Mass.) and Rep. Joe Barton (R-Texas) plan to reintroduce their children’s online privacy bill after the government shutdown ends, according to a Senate staffer, who noted “state progress [is] underscoring the need for federal action.”

For some, California’s regulatory actions are a welcome glimmer and, they hope, a sign of things to come.

“From our perspective, we’ll take it where we can get it,” said Joni Lupovitz, vice president of policy at Common Sense Media. “When California passes a measure, it can unleash a wave of measures across the country.”