First Aggressive GOP Effort on Privacy Spooks Tech Industry

A conservative North Dakota lawmaker is the first to push a tough data-privacy bill in a red state. Experts say he’s unlikely to be the last.

AP Photo/Matt Rourke
Jan. 27, 2019, 8 p.m.

North Dakota state Rep. Jim Kasper is a conservative Republican, a strong backer of President Trump, and a self-professed supporter of the wall on the southern border. He is, in short, as far away from a California liberal as it’s possible to be.

But when Kasper filed his latest data-privacy bill in the Legislative Assembly earlier this week, he threw his lot in with left-coast progressives in a big way. Though the bill isn’t quite as aggressive as California’s new privacy law, it borrows several of the provisions that have given the tech industry heartburn over the last year, including express opt-in consent and a private right of action for consumers who feel that their data has been violated.

And though the bill is barely two weeks old, the tech industry has already come to Kasper to express its displeasure.

“There was an AT&T representative last night, and I’m finding out they’re extremely concerned about the bill,” Kasper told National Journal last week. “I didn’t realize that it was written in such a way that they’re very interested in killing it.”

Kasper said he’d also heard from Andrew Kingman, a lawyer representing the State Privacy and Security Coalition, a state-focused lobbying group which counts some of the biggest internet and technology firms as its members. Though the conversation was less contentious than the one he had with AT&T, Kasper says the general message was the same—we really don’t like your bill.

Kingman confirmed the substance of the call he had last week with Kasper, while an AT&T representative would only point to a canned company statement on federal privacy legislation.

In an unusual admission for a Republican, Kasper said he’d looked to the European Union’s tough new privacy rules when crafting parts of his bill. “If we don’t want you to gather our information, like in the European model, you have to delete that confidential, private information,” he said, explaining what he’d told the industry representatives. “And you can’t share it or sell it with anyone if I say you can’t do it.”

Kasper said the tech lobbyists expressed particular concern over his bill’s private right of action, which they argue would open the door to a flood of frivolous lawsuits. But while the lawmaker said he was open to moderating some aspects of his bill, deleting that specific provision was a no-go.

“There has to be a private right of action,” he said. “Otherwise there’s no teeth in the companies violating the measure.”

“I wanted to get their attention,” Kasper later said. “And I guess I did.”

It may not be immediately obvious why the tech industry is expending the effort to kill Kasper’s bill. Fewer than 800,000 people live in North Dakota, the state only has one member in the House, and industry will have to abide by California’s stricter rules regardless.

But while Washington state and several other Democratic enclaves are pushing their own progressive privacy legislation, experts say the North Dakota legislation is the first example of a truly tough privacy bill being pushed by the right. “I just haven’t seen anything coming like this from the states from a Republican, which I think is kind of intriguing,” said Will Rinehart, the director of technology policy at the right-leaning American Action Forum. “This is going to be an interesting tension between the two major spaces of government, the federal government and the state government.”

Rinehart believes the North Dakota bill may be a harbinger of things to come. “I think we should anticipate other states, and other Republicans, getting into this fray, very much so,” he said. “Because even at the national level, this is really the very first time that you’ve seen the wide swath of privacy proposals come out.”

National action around privacy is escalating, driven largely by Silicon Valley’s desire to preempt the California law before it goes into effect next year. And while Democrats are looking to emulate the rules out of California and Europe, most Senate Republicans have advocated a light-touch approach that’s friendlier to industry.

But if conservative state legislatures keep introducing—and potentially passing—aggressive privacy legislation, some believe Senate Republicans may begin to crack.

“It’s one thing for them to slam California,” said Ernesto Falcon, legislative counsel at the Electronic Frontier Foundation. “But if it’s happening in their own backyard, because their own state legislature is interested in creating some protection for the users, I think the appetite for Congress to intervene dwindles with each step.”

Republican Sen. John Thune, the head of the Senate Commerce Subcommittee on Communications, Technology, Innovation, and the Internet, said he wasn’t particularly concerned by a state Republican’s rogue efforts on privacy. “I’m concerned about states going in 50 different directions, and us not being able to have some kind of a standard data-privacy law,” he told National Journal late last week.

But Kasper’s privacy bill so far has the support of six fellow state representatives and five state senators, all of them Republicans, giving it a fairly good chance of passage. If it does become North Dakota law, and if Senate Republicans later move to preempt it, Kasper said he would “probably” lean on the state’s two GOP senators to back off.

“I’m a states’ rights person,” Kasper said. “I’m unhappy that the Commerce Clause has been used by the federal government and the courts to try to invade states rights.”

“The trouble that I see with the Congress is they too many times get involved in something they ought to keep their nose out of, and so many times don’t do what they ought to do,” Kasper later said. “Particularly in the last two years, when the Republicans blew it . . . These Chicken Littles didn’t have the guts to stand up and support the president on issues such as border security.”

Comments like that make it clear that Kasper’s privacy bill does more than highlight a split between Congress and the states. Alec Stapp, a technology policy fellow at the conservative Niskanen Center, first said he was “surprised to see this kind of bill coming from a Republican, just because it is anti-business and anti-economic efficiency.”

But, he later added, the legislation is a prime example the growing gulf between establishment Republicans and their increasingly populist compatriots.

“I think there’s definitely divergence between traditional business Republicans who would be opposed to this kind of bill and Trump Republicans who would support it, especially at the state level,” Stapp said.

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