





The Clean-Up



In early August, a coalition of nearly 40 organizations, ranging from the banking industry to the film industry to the tech industry’s leading lobbying groups, sent a 20-page letter to the lawmakers behind SB-1121, effectively a wish list of changes. While the suggestions weren't ultimately included in the draft that legislators will vote on this week, they're a clear sign of the battle in store for 2019.

'If these changes are permitted, a business could offer incentives that are unjust or unreasonable.'

Mary Stone Ross, Privacy Advocate




Another major change sought to tweak disclosure requirements. Whereas the original bill requires companies to share specific pieces of data, the industry groups prefer to draw the line at "categories of personal information."



On Tuesday night, during an Assembly hearing on the bill, the final sticking point, particularly for the tech giants, was the law's handling of data collected for the purposes of advertising. While the law prohibits users from opting out of advertising altogether, it does allow them to opt out of the sale of their personal information to a third party. But the industry wanted to create an exception for information that's sold for the purposes of targeted advertising, where the users' identities aren't disclosed to that third party. Privacy groups including the ACLU and EFF vehemently opposed the proposal, as did MacTaggart. They argued that such a carve-out would create too big a loophole for businesses and undermine consumers' right to truly know everything businesses had collected on them.

"I was surprised they were this blatant, this early," MacTaggart says. "I expected this attack in 2019, but not in August 2018, two months after we passed the bill in the first place. "


Room for Improvement

It's not that the privacy bill is perfect. The ACLU, for one, criticized the bill's exclusion of a provision in the ballot initiative that would have given people the right to sue companies for violating their data privacy rights. It instead leaves enforcement up to the Attorney General, except in the case of a data breach. In turn, attorney general Xavier Becerra proposed his own list of changes to the law in a letter last week, including the restoration of people's ability to sue.

As the bill was being finalized, all sides did agree to some tweaks, like clarifying language that would protect data collected through clinical trials and other health-related information. Another change ensures that information collected by journalists remains safeguarded. And while the Attorney General didn't get everything he asked for, the legislature did agree to provide his office with an additional six months to implement enforcement regulations.


'I was surprised they were this blatant, this early.'

Alastair MacTaggart, Californians for Consumer Privacy

And yet Lee Tien, senior staff attorney at the EFF, says the business groups' hamfisted efforts to jam so many changes through in a matter of months is counterproductive. "There will be battles over the definition of consumer and personal information, and we’re prepared to talk seriously about those definitions," he says. "But that can't happen in any kind of responsible, grown-up way, in a short period of time."


For now, all sides at least agree that SB-1121 is effectively a stopgap. The fact that big businesses didn't get their way this time hardly signals a resounding victory for privacy. Next year's legislative session will likely see new bills with even more serious changes proposed by influential industries. "They've got another chance to succeed, and they’ll be back for sure," Baker says.

"One of the reasons why AB 375 passed unanimously is everyone knew there’d be a cleanup bill, and they had plenty of time to lobby to get their changes through," adds Ross, who opposed pulling the ballot initiative in June.

Some engaged citizen, of course, could always mount another bid for a ballot initiative, but with the 2018 deadline already passed, that couldn't happen until at least 2020, and it would take millions more dollars to put up another fight. That's left activists like Ross and MacTaggart relatively powerless in the very battle they began.

"I can talk to people and wave my arms around," MacTaggart says. "But the day I signed to give up the petition, I’m like Cinderella back in a pumpkin."

More Great WIRED Stories
