States Playing the Long Game on Internet-Privacy Laws

Four months after congressional Republicans voted to repeal privacy rules, more than 20 bills remain in limbo. But California is finally poised to act, and others may not be far behind.

California Gov. Jerry Brown discusses a bill up for his signature with deputy legislative secretary, Jennifer Johnson, on July 7 in Sacramento, Calif.
AP Photo/Rich Pedroncelli
Brendan Bordelon
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Brendan Bordelon
Aug. 14, 2017, 8 p.m.

When Republicans used the Congressional Review Act to reverse an impending rule protecting internet privacy back in March, they were met almost immediately with a flurry of bills from state legislatures promising to protect their citizens from the prying eyes of internet service providers.

But though advocates emphasized the urgent need for state privacy protections to fill the federal vacuum, not one of the more than 20 internet-privacy bills introduced in state legislatures have been signed into law in the four months since Congress rescinded the rule.

Privacy advocates say the delay was largely unavoidable in many states, given their truncated legislative calendar. They also pin the blame on lobbying efforts against the bills from some of the country’s largest internet service providers.

Even so, at least two states—California and Massachusetts—are set to make a strong push on internet-privacy legislation in the next several months. Even opponents of the legislation admit that the bills are popular, particularly in California. And advocates hope that the successful passage of legislation in either state will spur additional support in other areas.

“When at least one state passes a comprehensive broadband-privacy bill, it’s going to cause a domino effect where other states will see that as a model for what they can do in their community or in their state,” said Yosef Getachew, a policy fellow at the liberal think tank Public Knowledge.

At the tail end of the Obama administration last year, the Federal Communications Commission passed a rule preventing internet service providers from selling customer data to third parties without the user’s affirmative consent. The rule never actually protected anyone, since Republicans repealed the provision before it took effect. But states as diverse as Maryland, Alaska, South Carolina, New York, Montana, Minnesota, and Hawaii quickly introduced legislation with the aim of recreating the FCC’s rules at the state level.

Over four months later, none of those bills have been signed into law. Some, such as the one in Maryland, failed mere days after being introduced. Privacy advocates say that bill and others collapsed or stalled due to the brief nature of some states’ legislative calendars. Many states operate part-time legislatures that meet for only a few months every year or two. And Congress’s rollback of the FCC’s internet-privacy rules came within days of several of these legislatures adjourning.

“The timing of the congressional action was not ideal given the typical state legislative calendar,” said Chad Marlow, advocacy and policy counsel at the American Civil Liberties Union. “It was late in a lot of sessions … they had simply run out of time, or were running out of time, to get things done.”

Privacy advocates also say that internet service providers—particularly Comcast and AT&T—have aggressively lobbied against the privacy bills in states where lawmakers remain active. They say the lobbying campaign has caused lawmakers to slow the bills down through extensive committee proceedings.

“We have a full-time professional legislature here in California,”said Lee Tien, a senior staff attorney at the Electronic Frontier Foundation. “That’s good on a lot of issues, but it also means that to some extent the lobbying power is more like what you see in D.C.”

Representatives for Comcast did not respond to a request for comment. An AT&T spokeswoman referred National Journal to Jim Halpert, a lawyer for the State Privacy and Security Coalition, which includes AT&T, advertisers, and other companies opposed to state efforts on internet privacy.

Still, California’s internet-privacy legislation has moved forward relatively quickly since its July introduction. The bill, which largely mirrors the FCC’s repealed regulations, had been set to go through three separate state Senate committee hearings. Advocates described those hearings as a grueling gauntlet that could’ve killed the bill before it reached the floor. But one hearing was cancelled, and the legislation managed to pass through two others.

The bill is now expected to come up for a Senate floor vote by the end of this month before being punted back to the California State Assembly, where advocates anticipate it will face little opposition. The bill will have to clear the state’s legislature by Sept. 15, and must be signed by Democratic Governor Jerry Brown by Oct. 15, in order to make it through this legislative cycle.

A similar bill in Massachusetts is moving more slowly, but no less methodically. An aide to Massachusetts state Senator Cynthia Creem, who introduced the bill, told National Journal that committees in both houses have already held hearings on the internet-privacy legislation. The bill would not need to be reported out of committee until March 2018 (though it could be cleared much earlier), and the Massachusetts legislature remains in session until November 2018. Though Massachusetts Gov. Charlie Baker is a Republican, the aide said broad public support for the provision in the state and the governor’s moderate streak bodes well for the bill should it clear the legislature.

Those opposed to state efforts on internet privacy argue that a patchwork of state laws could cause chaos in the industry, and that internet service providers do little to abuse consumer trust. “There isn’t a particular reason to impose unique opt-in privacy requirements on [service providers] and not on a broad range of other industries that are much more intrusive than [service providers] are,” said Halpert, who added that states should tread lightly before seeking to recreate federal regulations, which can be tweaked more easily than a bill codified into state law.

But Halpert also acknowledged that California’s internet-privacy law is quite popular. “There’s a lot of support for it in the legislature,” Halpert said.

Regardless of how California and Massachusetts play out, most advocates believe the sheer number of bills waiting in the wings once state legislatures return to session next year all but guarantee that some will pass.

“When you combine a huge number of bills with overwhelming political support across the political spectrum for passing them, that’s one of those rare cases where it’s ok to talk the numbers game,” said Marlow. “I expect we’re gonna have an even greater push for these in 2018 and have a lot of laws passed.”

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