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Privacy Advocates Shift Focus From Congress to States

State Rep. Andy Josephson, R-Anchorage, left, listens as Joshua Decker, executive director of the American Civil Liberties Union of Alaska, speaks about two bills on data privacy at a news conference in in Juneau, Alaska, Wednesday Jan. 20, 2016.

State Rep. Andy Josephson, R-Anchorage, left, listens as Joshua Decker, executive director of the American Civil Liberties Union of Alaska, speaks about two bills on data privacy at a news conference in in Juneau, Alaska, Wednesday Jan. 20, 2016. Rashah McChesney / AP Photo

Lack of congressional action has state lawmakers proposing bills limiting police surveillance and protecting student and employee privacy.

Frus­trated by con­gres­sion­al grid­lock, le­gis­lat­ors in 16 states and the Dis­trict of Columbia un­veiled an ar­ray of bills Wed­nes­day aimed at bol­ster­ing pri­vacy pro­tec­tions.

An­thony Romero, the ex­ec­ut­ive dir­ect­or of the Amer­ic­an Civil Liber­ties Uni­on, which co­ordin­ated the rol­lout of the bills, ar­gued that state ac­tion is ne­ces­sary be­cause Con­gress has been “asleep at the switch” on pri­vacy is­sues. “This move­ment is about seiz­ing con­trol over our lives. Every­one should be em­powered to de­cide who has ac­cess to their per­son­al in­form­a­tion,” he said in a state­ment.

The bills, in­tro­duced by Re­pub­lic­ans and Demo­crats in states from Alaska to North Car­o­lina, would lim­it po­lice sur­veil­lance, grant stu­dents broad­er pri­vacy rights, and en­sure that em­ploy­ees can­not be forced to provide ac­cess to their so­cial-me­dia ac­counts.

Many of the bills have coun­ter­parts on the fed­er­al level that have gone nowhere. “Our fed­er­al gov­ern­ment didn’t take the lead and should have taken the lead,” said Michigan state Rep. Peter Lu­cido, a Re­pub­lic­an who sponsored one of the bills. “But now it left us all to go ahead and fend for ourselves at the state level.”

If en­acted, the bills would mark a ma­jor shift in policy-mak­ing to the states on pri­vacy is­sues. While Cali­for­nia and a few oth­er states have en­acted tough pri­vacy laws in re­cent years, most sig­ni­fic­ant policies have been set on a na­tion­al level.  

Sen. Ed Mar­key, a Mas­sachu­setts Demo­crat and long­time ad­voc­ate of con­sumer pri­vacy pro­tec­tions, ap­plauded the state law­makers and said he ex­pects “this in­creas­ing mo­mentum for pro­tect­ing Amer­ic­ans’ pri­vacy rights to en­cour­age ac­tion by Con­gress.”

On a con­fer­ence call with re­port­ers, the ACLU’s Romero ex­pressed par­tic­u­lar ex­as­per­a­tion that Con­gress has failed to up­date the Elec­tron­ic Com­mu­nic­a­tions Pri­vacy Act of 1986 to re­quire po­lice to ob­tain a war­rant to read emails and oth­er elec­tron­ic mes­sages. More than 300 House mem­bers have signed on as co­spon­sors to such a bill, but it has yet to make it out of the Ju­di­ciary com­mit­tees in either cham­ber.

“As Con­gress is ground in­to a grid­lock and we still have not re­formed any of the fed­er­al pri­vacy laws, it’s sa­li­ent that the states have stepped up to the plate and are ad­dress­ing the pri­vacy needs of their own res­id­ents,” Romero said.

An aide to House Ju­di­ciary Com­mit­tee Chair­man Bob Good­latte in­sisted that law­makers are still try­ing to reach an agree­ment on up­dat­ing ECPA. At a hear­ing last month, Good­latte wor­ried that the cur­rent ver­sion of le­gis­la­tion to re­vise the 1986 law could hamper both civil and crim­in­al in­vest­ig­a­tions.

While many bills to lim­it po­lice sur­veil­lance have failed to pass Con­gress, there has been even less move­ment on pro­pos­als to re­strict how com­pan­ies like Google and Face­book can handle private data. The White House even an­nounced its own “Con­sumer Pri­vacy Bill of Rights Act” nearly a year ago, but Con­gress has shown no in­terest in the is­sue, with many law­makers wor­ried about harm­ing growth in the tech in­dustry.

Con­gress, however, hasn’t been en­tirely com­pla­cent on all pri­vacy is­sues. In the wake of the leaks by Ed­ward Snowden, law­makers en­acted his­tor­ic le­gis­la­tion last year to curb the do­mest­ic-sur­veil­lance powers of the Na­tion­al Se­cur­ity Agency. But that bill passed only be­cause pro­vi­sions of the Pat­ri­ot Act were about to ex­pire and Con­gress was forced to grapple with the is­sue. 

Brendan Sasso is a Technology Correspondent at National Journal, where this article was originally published.

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