Giving Up on Congress, Privacy Advocates Shift Fight to the States

State lawmakers announced bills to limit police surveillance and protect the privacy of students and employees.

State Rep. Andy Josephson, left, listens as Joshua Decker, executive director of the American Civil Liberties Union of Alaska, speaks about two bills on data privacy at a news conference in in Juneau, Alaska, on Wednesday. The bills are aimed at protecting students and employees from having to provide access to personal social-media accounts under coercion or threat.
AP Photo/Rashah McChesney
Brendan Sasso
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Brendan Sasso
Jan. 20, 2016, 8 p.m.

Frus­trated by con­gres­sion­al grid­lock, le­gis­lat­ors in 16 states and the Dis­trict of Columbia un­veiled an ar­ray of bills Wed­nes­day aimed at bol­ster­ing pri­vacy pro­tec­tions.

An­thony Romero, the ex­ec­ut­ive dir­ect­or of the Amer­ic­an Civil Liber­ties Uni­on, which co­ordin­ated the rol­lout of the bills, ar­gued that state ac­tion is ne­ces­sary be­cause Con­gress has been “asleep at the switch” on pri­vacy is­sues. “This move­ment is about seiz­ing con­trol over our lives. Every­one should be em­powered to de­cide who has ac­cess to their per­son­al in­form­a­tion,” he said in a state­ment.

The bills, in­tro­duced by Re­pub­lic­ans and Demo­crats in states from Alaska to North Car­o­lina, would lim­it po­lice sur­veil­lance, grant stu­dents broad­er pri­vacy rights, and en­sure that em­ploy­ees can­not be forced to provide ac­cess to their so­cial-me­dia ac­counts.

Many of the bills have coun­ter­parts on the fed­er­al level that have gone nowhere. “Our fed­er­al gov­ern­ment didn’t take the lead and should have taken the lead,” said Michigan state Rep. Peter Lu­cido, a Re­pub­lic­an who sponsored one of the bills. “But now it left us all to go ahead and fend for ourselves at the state level.”

If en­acted, the bills would mark a ma­jor shift in policy-mak­ing to the states on pri­vacy is­sues. While Cali­for­nia and a few oth­er states have en­acted tough pri­vacy laws in re­cent years, most sig­ni­fic­ant policies have been set on a na­tion­al level.  

Sen. Ed Mar­key, a Mas­sachu­setts Demo­crat and long­time ad­voc­ate of con­sumer pri­vacy pro­tec­tions, ap­plauded the state law­makers and said he ex­pects “this in­creas­ing mo­mentum for pro­tect­ing Amer­ic­ans’ pri­vacy rights to en­cour­age ac­tion by Con­gress.”

On a con­fer­ence call with re­port­ers, the ACLU’s Romero ex­pressed par­tic­u­lar ex­as­per­a­tion that Con­gress has failed to up­date the Elec­tron­ic Com­mu­nic­a­tions Pri­vacy Act of 1986 to re­quire po­lice to ob­tain a war­rant to read emails and oth­er elec­tron­ic mes­sages. More than 300 House mem­bers have signed on as co­spon­sors to such a bill, but it has yet to make it out of the Ju­di­ciary com­mit­tees in either cham­ber.

“As Con­gress is ground in­to a grid­lock and we still have not re­formed any of the fed­er­al pri­vacy laws, it’s sa­li­ent that the states have stepped up to the plate and are ad­dress­ing the pri­vacy needs of their own res­id­ents,” Romero said.

An aide to House Ju­di­ciary Com­mit­tee Chair­man Bob Good­latte in­sisted that law­makers are still try­ing to reach an agree­ment on up­dat­ing ECPA. At a hear­ing last month, Good­latte wor­ried that the cur­rent ver­sion of le­gis­la­tion to re­vise the 1986 law could hamper both civil and crim­in­al in­vest­ig­a­tions.

While many bills to lim­it po­lice sur­veil­lance have failed to pass Con­gress, there has been even less move­ment on pro­pos­als to re­strict how com­pan­ies like Google and Face­book can handle private data. The White House even an­nounced its own “Con­sumer Pri­vacy Bill of Rights Act” nearly a year ago, but Con­gress has shown no in­terest in the is­sue, with many law­makers wor­ried about harm­ing growth in the tech in­dustry.

Con­gress, however, hasn’t been en­tirely com­pla­cent on all pri­vacy is­sues. In the wake of the leaks by Ed­ward Snowden, law­makers en­acted his­tor­ic le­gis­la­tion last year to curb the do­mest­ic-sur­veil­lance powers of the Na­tion­al Se­cur­ity Agency. But that bill passed only be­cause pro­vi­sions of the Pat­ri­ot Act were about to ex­pire and Con­gress was forced to grapple with the is­sue.  

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