California is facing a major battle over internet privacy

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When the Congress voted in March to overturn landmark FCC privacy rules, consumers and advocacy groups were incensed by the decision. The FCC rules that were set to go into effect would have forced internet service providers to get permission from customers before selling their data to third parties. The vote seemed to be a bow to the telecom industry, with few redeeming qualities for internet users.

In the outrage that followed, local legislators around the country have floated more than a dozen measures that would reinstate similar rules in their jurisdictions. Illinois, New York, and several other states are now considering bills that would provide the FCC protections, either by introducing entirely new privacy measures, or by amending existing legislation. So far, the majority of those measures are still under consideration, but California is facing a major trial in coming days, as state Senate committees debate Assembly Bill 375 — a measure that could be a bellwether for similar debates in other states.

California Assemblymember Ed Chau first introduced the measure through an anachronism in state deadlines, entirely gutting an unrelated bill and replacing it with the broadband privacy measure. Similar to the FCC’s scrapped rules, the measure would require “prior opt-in consent” from customers before services “disclose, sell, or permit access to that customer’s personal information.” It would also require that service providers make “reasonable security procedures to protect customers’ personal information.”

But AB 375 faces an unusually high series of hurdles before it can go to a full vote in the Senate. It must make its way through multiple committees, which have the opportunity to kill it before it gets to the full Senate. (The bill could also be pulled until next year’s session.) Last last month, the Electronic Frontier Foundation noted, the bill seemed to be stalled in the Senate Rules Committee, and would be dead if it didn’t see a vote ahead of a deadline for legislation later this month. The measure has since been moved ahead, but now faces three different committee hearings over three days, starting on Monday.

EFF legislative counsel Ernesto Falcon says the decision to send the bill through those committees gives “as many bites at the apple to defeat the bill” as possible, as any one of the committees could end the process. “When you move on to the larger body, you just have a more consumer-friendly legislative body,” he says.

“That means there are three chances to strike it down — so that’s not great,“ says Chris Conley, a policy attorney at the ACLU of Northern California. The Sacramento Bee wrote an editorial this week in support of the bill, but also said the three committees were an ominous sign for the legislation. “A triple referral is a rarity, generally reserved for bills destined for the trash heap,” the Bee writes. “We hope Chau defies the odds.” AT&T, the EFF noted this week, has been pushing back on the legislation, arguing that current privacy protections are sufficient.

Should the measure pass the committees and the Senate, the debate wouldn’t be over — the California Assembly will still need to approve the bill before the governor decides whether to sign it into law. But Falcon says a win in the Senate would give the bill momentum, and make it more difficult for legislators to take a stand against the tide.

Broadband privacy legislation is broadly popular. Falcon points to a recently released poll that found supports for similar measures across party lines. “It’s pretty explicit on where voters are, whether they’re conservative or liberal,” he says. But that, of course, didn’t stop national lawmakers from overturning the FCC’s rules, despite the likely foreseen pushback.

Whether states take a different approach isn’t yet clear. Should California pass its consumer protections, other states may move ahead with their own equivalents. As Conley says, other lawmakers can point to California when it leads on legislation, saying “this is the most populous state in the country and this law is functioning well.”

But if the measure is quietly blocked by a committee, with minimal fallout, it seems possible that other legislators could see the opportunity to quietly duck. As bills in other states, including Illinois and New York, sit in committees, the stakes for California’s bill could go well beyond the Golden State.

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