Sacramento Gone Wild
California Passes Landmark Privacy Law
Net Neutrality and Emails Bills Advance
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Laws, like sausages, cease to inspire respect
in proportion as we know how they are made.
John Godfrey Saxe
We will attempt to cover the whirlwind of activity from the California legislature in the past few weeks with the understanding that we likely will revisit these issues in more detail on a later show.
California Passes California Consumer Privacy Act of 2018
In May 2017, AB 375 (California Consumer Privacy Act of 2018) passed the Assembly only to be placed on inactive status in September 2017. Proponents instead prepared to place the measure on the November 2018 ballot. Over a period of seven days at the end of June, the ballot measure was withdrawn and AB 375 was amended, passed and signed by Governor Brown. The measure does not take effect until January 1, 2020.
Professor Eric Goldman’s assessment:
The result is a sweeping, lengthy (10,000 words!), insanely complicated, and poorly drafted privacy regulation that will govern the world’s fifth largest economy. Needless to say, this rushed and non-inclusive process created a law with many defects, ranging from typos and drafting errors to terrible policy ideas.
An Introduction to the California Consumer Privacy Act (CCPA). See also IAPP, Analysis: The California Consumer Privacy Act of 2018; Jeff Kosseff, Ten Reasons Why California’s New Data Protection Law is Unworkable, Burdensome, and Possibly Unconstitutional; Tech Dirt, Yes, Privacy Is Important, But California’s New Privacy Bill Is An Unmitigated Disaster In The Making.
California Net Neutrality Bill Resurrected
On May 30th, the California Senate passed SB 822 (the California Internet Consumer Protection and Net Neutrality Act of 2018) which had been called the “gold standard” for state net neutrality legislation. A week later, the bill was gutted in the Assembly Communications and Conveyance Committee by Chairman Miguel Santiago, who pushed through a vote without even hearing testimony first. The move sparked a backlash against Santiago and by July 5th, he had agreed to restore the deleted provisions making passage likely.
The legislation would both adopt the Obama era net neutrality rules while also prohibiting California public entities from purchasing services from ISPs that engage in prohibited activities.
California is one of 36 states trying to pass their own net neutrality laws since the Republican-led FCC voted to repeal its rules last December. Washington and Oregon passed their own protections earlier this year. New York is working on a bill similar to California’s.
California Email Legislation Advances
AB 2546 amending California’s commercial email law, was pitched by advocates as a minor change “to close loopholes and provide clarifications” of existing law, when in reality it was a Christmas wish list for anti-spam lawyers. The bill barely passed the Assembly in May and has encountered opposition in the Senate. Jared Gordon and I testified in opposition to the bill and were able to get a number of the more objectional provisions removed. Even with two branches of the California Lawyers Association coming out against the bill, it still has dangerous provisions – most notably an expansion of the law that would create a strict liability standard for online advertisements without any showing of harm.
McCormick Barstow, LLP.
Jared Gordon is an attorney in the Business Practice Group of McCormick Barstow, LLP. Prior to private practice, he served as General Counsel to several online industry companies. He primarily advises clients on e-commerce services, online advertising, software licensing, website accessibility, e-commerce taxation, and IT vendor contracts. He also advises clients in intellectual property clearance and registration, social media law, employment matters, acquisitions and sales, real estate, and advice on related litigation.
Joshua de Larios-Heiman
San Francisco, California
Joshua de Larios-Heiman, CIPP/US, is the founder and managing director of Data Law, a boutique law practice that focuses on privacy and data security, cyberlaw, intellectual property, and funding for startups, technology companies, and funders. He is vice chair of the Internet & Privacy Law for the Business Law Section of the California Lawyers Association and lectures on privacy topics at the University of San Francisco Law School.
Last year we had Annie Goldson talk about her film “Kim DotCom: Caught in the Web“. The Kim show may be coming to the U.S. after all.
Plus – look who turned 25!