States Ramp Up Privacy Legislation in Post-Snowden World, Worry Over New Tech
State governments seem to be introducing more legislation that boosts privacy and limits government, law enforcement and corporate access to their private electronic information. Experts pointed to states considering legislation on the use of cell-site simulators and drones, among other technologies, and limiting access to emails and student data. Those interviewed couldn't say how many privacy-related bills are being discussed across state legislatures, but they believe there's a growing body of such legislation. They also couldn't point to any one privacy-related issue or legislation as more important than another now.
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The American Civil Liberties Union highlighted a coordinated and bipartisan effort Jan. 20 in 16 states and the District of Columbia to introduce bills -- largely related to location tracking, privacy of electronic content, and employee and student privacy -- that "empower Americans ... to take control of their personal privacy in the digital age," said ACLU's website. "As this nationwide privacy push clearly demonstrates, where Congress is unwilling or unable to act to protect Americans’ privacy, the states are more than willing to step up and fill the void.”
California's Electronic Communications Privacy Act, which took effect Jan. 1, puts in place practical privacy protection for people there (see 1601040031) and that would hold true for other technologies such as StingRays, access to a person's cellphone content or student data privacy, said Rachel Levinson-Waldman, senior counsel for the Brennan Center for Justice. CalECPA is considered model legislation that protects email content, location data, metadata and device searches and requires government entities to get a warrant. Similar congressional legislation, while popular in the House and Senate, has moved slowly. A House committee is expected to mark up its version next month (see 1602030031).
Levinson-Waldman said such privacy bills "send a message both to Congress and potentially to the presidential race that privacy is an issue that people are taking seriously, that they care about, it's a priority at the top of their agenda." She pointed to NSA document leaker Edward Snowden's revelations of government spying and a more-active conversation about new technologies and their impact as other contributors to the upswell: "We've become much more cognizant of all of the other ways that there could be sensitive information availed about people like location related information and metadata about where somebody is at a given point.”
Dave Maass, investigative researcher with the Electronic Frontier Foundation, agreed more attention is paid to privacy post-Snowden. He said Congress is viewed as unproductive on the issue, and there's a "heightened consciousness" over police surveillance technologies, data breaches and commercial tracking of people. There's considerable interest over law enforcement use of drones for surveillance, but people are also worried about paparazzi, stalkers and others using the vehicles, he said: State legislators also approach privacy differently, seeing it through the eyes of their constituents, while federal officials may view it more through a national security lens.
Student privacy is another big area, as more technology is introduced into classrooms with potential to track students' activity (see 1601050064). "A lot of ways that legislators end up coming to issues such as privacy is through their children," Maass told us. "Seeing what children are doing online and what kind of information is being gathered on them becomes legislation.”
States tapered off introducing legislation on the use of drones mainly because the Federal Aviation Administration has jurisdiction over such unmanned vehicles in airspace, particularly for safety, said Ryan Hagemann, technology and civil liberties policy analyst at the Niskanen Center, but states may still muscle in on regulating drones on surveillance and data retention. He said many states are misguided in creating technology-specific legislation. "The problem is, we already have a wide patchwork of various privacy laws," he said. "Trying to treat drones as though they're fundamentally different from any other potentially privacy-invasive technology doesn't really, in my mind, work." Fundamentally, he said there's no difference between using a drone and "using a really, really long selfie.”
Maass said some legislatures are part time and spend little time in session so it's difficult for legislators to get much of an education on emerging technologies. He said one often gets "really terrible, terrible bills being introduced without much thought." Legislators may read about a technology and then write a bill without understanding its consequences, said Maass. He said the younger generation of legislators is more tech savvy and may offer better legislation.
Hagemann said states are like "a laboratory of democracy experiments" and it's difficult to say what the right privacy answer is since the concept itself is "amorphous." If "we can have patchwork laws that relates to privacy and experiment with what does and what doesn't work while trying to keep in legislation that would address the issue as broad as possible," he said, "that probably is the best path forward.”