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With Prop 24, California is trying to rewrite the rules of online privacy. Again

By Sam Dean, Los Angeles Times on

Published in Business News

Mactaggart picked opt-out, arguing that opt-in would be too harsh for the companies that collect and sell data, and decided on a private right of action, believing that a flurry of lawsuits would do more to keep companies in line.

But when Mactaggart's measure gathered enough signatures to get on the ballot in 2018, the state Legislature jumped to intervene. Sacramento lawmakers told Mactaggart that they'd pass the law themselves, saving him the trouble of an expensive election campaign - on the condition that he drop the private right of action and give that power to the attorney general instead.

The law passed, but when the dust settled in early 2019, Mactaggart looked upon what he had wrought and concluded there were some major flaws in the final product.

Mactaggart saw one bit of language that was introduced in the legislative process, in particular, as fatal to his original intent. The loophole created an exception for "service providers," allowing the online ad machine to hum along largely uninterrupted, as long as every company that handled a person's data signed a contract saying that it was doing so to provide other companies a service. The law also failed to put guardrails around sharing data, as opposed to selling it, and companies took advantage of that ambiguity.

Then he watched as tech companies tried to blow even more holes in the California Consumer Privacy Act

over the course of 2019, backing bill after bill to undermine it. On top of that, the attorney general's office, in his opinion, was simply too small to effectively police the internet.

 

So along with Bob Hertzberg, the state Senate majority leader from Van Nuys who initially shepherded Mactaggart's ballot measure off the ballot and into Sacramento, he drafted a new ballot measure that would, in his view, close these loopholes and provide a backstop that couldn't be easily eroded by the tech industry's lobbyists: Proposition 24.

Here's where the politics get complicated.

Some groups that initially backed the California Consumer Privacy Act wanted the new measure to come back stronger than the original attempt: If you're going to put a new law in front of voters, at a time when there's a public awareness of the need for privacy, why not make it opt-in, rather than opt-out, and include a private right of action to let the people of California do their own enforcement?

The ACLU of Northern California, which has spearheaded a number of privacy initiatives, came out strongly against Proposition 24. "We believe that there should be an opt-in framework for collection and use of people's personal information," said Jacob Snow, an attorney with the group, "and we believe there should be strong enforceable rights backed up by a private right of action, and we have fought for them in the past."

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