California Privacy Bill Could Change National Privacy Landscape

Eye Spy on Your TV

The California Consumer Privacy Act of 2018 has passed the California State Legislature and is headed to Governor Jerry Brown’s desk, where he is expected to sign it. The bill sharply curtails what tech giants can do with your data, requires disclosure, allows consumers to opt-out of having their private information peddled, and empowers the California Attorney General to fine companies who aren’t in compliance with the law.

Eye Spy on Your TV

While a state law, the effects of this legislation would no doubt be felt throughout the country. California—the world’s fifth largest economy—tends to have an outsized effect on the rest of the country. In an effort to comply with this law, many companies could (and should) adopt a one-size-fits-all approach to privacy.

Alastair Mactaggart

The California Consumer Privacy Act of 2018 came to be, in part, because of a ballot initiative being led by real estate developer Alastair Mactaggart. Mr. Mactaggart has financed a much stricter initiative and gathered 600,000 signatures to get it on the November ballot. Legislators were trying to head that initiative off, and Mr. MacTaggart said he would scupper his effort if the Legislator passed this compromise bill.

Opposing the bill is a who’s-who of surveillance capitalism companies, including Facebook, Google, Twitter, Amazon, Uber, AT&T, Verizon, and even Microsoft. Many of those companies are California natives, as is Apple, a tech giant who did not oppose the bill.

As TechCrunch‘s Devin Coldewey put it, “It’s the kind of law one feels one could almost get behind without reading it, since it makes all the right people angry.”

Yes, indeed.

In addition tot he effects mentioned at the top of this piece, the bill would also prevent companies from retaliating against consumers who opt out of the being the product,. At the same time. the bill would allow companies to offer financial incentives to entice consumers into walking up the gangplank voluntarily.

5 thoughts on “California Privacy Bill Could Change National Privacy Landscape

  • Bryan:

    This is a complex topic, and I’ve debated the wisdom of even trying to respond to it, given that it requires a far more in depth treatment than a mere column comment can provide. Nonetheless, here goes.

    TLDR; The enactment of legislation, irrespective of the fate of the California initiative and others in near term, to provide greater control by individuals of their own data is inevitable, even if unsuccessful in near term.

    There are many reasons why people exercise poor judgement, make bad decisions and execute deleterious policies, even when their motive is not malfeasant or when they may even have the best of intentions. One reason is a limited perspective and a failure to recognise the greater trends or currents that are driving change. FB and social media writ large are the modern day poster children for this phenomenon of bad judgement.

    There are two broad forces or trends regarding the rule of law and the expansion of individual rights, of which privacy rules are but a lesser part and the latest battlegrounds, over which these trends will be fought and extended. For this discussion, we need to take a LEO (low earth orbital) perspective and view where we are as a planet. Bear with me.

    The first is the interplay between justice and fairness, not only in democratic societies where the rule of law is central to governance, but even in more individual liberty hostile environments, where social movements are testing these boundaries. This has been a generational trend that has markedly been underway for the past 170 plus years, and despite periodic reversals, describes a thus far unstoppable and directional arc, which we can appreciate historically. Justice is the codified rule of law, characterised by reward for constructive engagement with society and punishment for acts that harm others. However, it requires another pillar, namely fairness, which is the equitable distribution of the rule of law across all members of society, irrespective of ethnicity, religion, gender, caste, class or any other demographic qualifier. Fairness is an essential accompaniment to justice. The inequitable enforcement of the rule of law, generally against the less powerful by a more powerful class, entity or interest, will lead inevitably to discontent, social fragmentation, and conflict. An example of this might be the criminalisation of the opioid crisis for one demographic in society and its treatment as a non-criminal public health crisis to another demographic. In democracies where universal suffrage is practiced, it can lead to changes in legislative and executive leadership at the ballot box, assuming a sufficient level of societal support.

    What’s relevant to this discussion is that justice and fairness combine to protect the rights of the weak relative to the powerful, and to insure that these rights are equitably protected. These articles of law and bills of rights include the abolition of slavery, universal declaration of human rights, the rights of women, universal suffrage, rights of children (particularly to be free from enforced child labour), and the Helsinki accords protecting the rights of human subjects in experimentation; all moving directionally towards shifting the balance of power away from powerful centres to whole classes of individuals and ceding to them a greater measure of individual liberty and control through the exercise of consent. Consent is a key operative tool.

    The second trend concerns domain over our individual personhood; specifically the degree to which we own and control our individuality relative to greater and more powerful interests. This is related to the issue of justice and fairness, but is distinct, in that this is a question of how much liberty and control are to be granted to the individual over their own persons, and products of their persons (eg recompense for labour, biological material). This is part of a larger societal trend away from our shared historical legacy of power being centred in powerful institutions outside of the individual, whether in chattel slavery vs owners, serfdom vs feudal lordship, or labour vs capital to name just a few societal relationships whose balances have been institutionally reset by courts of law and enforcement over time, when not outright abolished. In the age of information, that battle is now engaged over our individual data. This movement, too, is global and directional, and is moving in favour of more control to the individual.

    Last week, for example, we held a meeting in Edinburgh on Respiratory Syncytial Virus, or RSV. One of the issues that came up, in discussing new studies that might examine how host factors, that is immunological and genetic human traits, might select for more aggressive and virulent virus lineages, we discussed the need to collect human specimens for genetic and transcriptome testing; and how now the European Union has now required that scientists design consent forms to allow human subjects to ‘opt in’ to have their samples stored long term and be tested for purposes other than the studies in which they were originally consented.

    This is a shift is part of that same trend to insuring that individuals have a greater say over not simply their own data, but their own personhood – what is allowable to be done with their biological specimens, and if there is to be any new product developed from those specimens, whether the individual will know of it, and even whether or not they, individually or as an identified class, should receive any share in any benefits or profits therefrom. This is a monumental shift from practices of even 20 years ago, in which such specimens were stored and tested without either knowledge or consent by study participants.

    The point being that, worldwide, we have been culturally biased towards a greater balance of power resting with the powerful relative to the weak and vulnerable; however over time and across diverse industries, individuals are being granted ever greater control over their personhood, whether that be their biological specimens and their private data, be it clinical, financial, or otherwise such that, were those data released into the wild, there could be deleterious consequences to the individual. Social media related data, ultimately, will be treated no differently; nor should they be.

    The current terms of engagement with social media giants remains asymmetric in power distribution. Their terms, as John K points out, may be ‘understood’ and even legal, as there are, in most countries, no laws governing what data social media giants can collect and what they may do with those data. However, as with past powerful interests and institutions, these terms are non-consensual, reflect a power asymmetry, shift the benefits of those terms towards the institutions and the risks (eg consequences of data breaches) to the individual.

    Thus, we come full circle to the issue of justice and, importantly, fairness, whose global trend line has been relentlessly directional in favour of the individual and, with respect to domain, extending control by the individual over their own personhood, which today specifically references their data.

    Whatever the fate of the California initiative, inevitably every industry is being compelled to grant greater authority to individual, through the process of informed consent, over their data. Social media cannot remain forever an exception to this rule, and eventually, inevitably, will be subject to common standards, the rule of law and our evolving sense of fairness.

  • Also this doesnt prevent companies from creating shells to transfer this information from one shell to another that won’t be bound, much less through bankruptcy… relevant portion here:

    (2) For purposes of this title, a business does not sell personal information when:

    (D) The business transfers to a third party the personal information of a consumer as an asset that is part of a merger, acquisition, bankruptcy, or other transaction in which the third party assumes control of all or part of the business provided that information is used or shared consistently with Sections 1798.110 and 1798.115. If a third party materially alters how it uses or shares the personal information of a consumer in a manner that is materially inconsistent with the promises made at the time of collection, it shall provide prior notice of the new or changed practice to the consumer.

    Yea, good luck with bankruptcy giving notice. And even so, it will be “you’re info is f’d”

    In this game, it’s best to NOT put your private info in the cloud. Much like global thermo nuclear war, it’s the only winning move

  • Sounds a bit too communist to me. How can you ‘opt out’ of having your information peddled when that IS the bargain. You get a free service because your info being peddled is the price you’re paying. You cannot mandate a free service.

    I guess if you ‘opt out’ the system will then have to kick you off.

    That said, despite my reservations of any thing remotely resembling reason coming out of california much less moon beam, I’m very pro privacy, so lets see what they actually pass.

    1. “despite my reservations of any thing remotely resembling reason coming out of california much less moon beam”

      John – one of the great things about America is freedom of speech and I would do nothing to try to squash that … and now I’m going to exercise that right as you did.

      Your comment above is one of the most ignorant and uninformed things I’ve ever read that wasn’t uttered by Delusional Donald.

      But I thank you for expressing your opinion because you have just saved me some time … from this point forward if I’m browsing macobserver.com and there’s an article written by you, I’ll know it’s not worth reading and just move along.

      Old UNIX Guy

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