California has enacted a sweeping privacy law, California\u2019s Consumer Privacy Act, which allows for users to opt out of and completely delete the personal data big tech companies store and sell to third parties.[4]<\/a> Furthermore, along the same vein of supporting user privacy, California has included a private cause of action for users against tech companies who breach users’ rights.[5]<\/a> Big tech, which lobbied aggressively against the legislation, is trying to make it more difficult for users to so easily delete the accumulated personal data.[6]<\/a> For example: although people may have access to a portal where they can delete the accumulated data, tech companies are making it difficult to find the portal by burying it underneath mountains of information.[7]<\/a><\/p>\n In an effort to prevent the spread of California’s user-friendly privacy laws, big tech has responded by lobbying in other states for far more relaxed privacy laws.[8]<\/a> Many states’ efforts to enact their own user-friendly privacy laws have been defeated by big tech lobbying.[9]<\/a> States consider two types of privacy laws generally: an opt-in approach and an opt-out approach.[10]<\/a> The opt-in approach is user friendly as it would create a default setting where big tech cannot sell users’ information, unless users opt in and allow big tech to sell such private information.[11]<\/a> The opt-out approach is the converse of this. The default setting is that big tech has the right to collect and sell users’ information, unless the user opts out.[12]<\/a> A private right of action in the courts may follow a breach by big tech in either model, but it does not necessarily follow.<\/p>\n At least two states, Connecticut and Oklahoma, have attempted to enact legislation following the opt-in approach which also provides a private cause of action.[13]<\/a> These user-friendly bills are examples of legislation that faced immense pushback from big tech lobbying and ultimately failed.[14]<\/a> Instead of adopting a user-friendly bill, Connecticut’s second attempt at a privacy bill followed the Virginia model, which is the friendliest to big tech.[15]<\/a> Big tech is sending lobbyists to the states and pushing for the Virginia model in place of these user-friendly attempts at protecting user privacy.[16]<\/a><\/p>\n The Virginia model, a business-first idea, follows a complicated opt-out approach and does not provide a private cause of action if big tech breaches privacy agreements.[17]<\/a> Furthermore, Virginians can only access their collected information via a portal, and then they can decide to alter or delete any accumulated information.[18]<\/a> The bill was hailed a success by big tech spokespersons from Microsoft and Amazon.[19]<\/a> Virginia’s bill stands in direct contrast to California’s bill.<\/p>\n Faced with this dichotomy, states across the U.S. are continuously facing their own challenges in enacting privacy bills. A user-friendly approach, an opt-in model, is sure to face criticism and backlash from big tech lobbyists. Perhaps the federal government will pass its own sweeping legislature; whatever the outcome may be, in the meantime, big tech is sure to have its footprint on any final product coming from the legislatures.<\/p>\n <\/p>\n [1]<\/a> See<\/em> Riley v. California<\/em>, 573 U.S. 373, 386-387 (2014) (discussing how a warrantless search of an arrestee’s home is unlawful in the same way a warrantless search of an arrestee’s phone is unlawful).<\/p>\n [2]<\/a> Id.<\/em> at 385 (“modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”).<\/p>\n [3]<\/a> Sara Fischer, Big Tech at War Over Privacy<\/em>, Axios (Jan. 28, 2021), https:\/\/www.axios.com\/big-tech-at-war-over-privacy-cb9bc9a4-ca65-420c-b0ad-d307f341e7ad.html.<\/p>\n [4]<\/a> Todd Feathers, Big Tech is Pushing States to Pass Privacy Laws, and Yes, You Should be Suspicious<\/em>, The Markup (Apr. 15, 2021), https:\/\/themarkup.org\/privacy\/2021\/04\/15\/big-tech-is-pushing-states-to-pass-privacy-laws-and-yes-you-should-be-suspicious.<\/p>\n [5]<\/a> Id.<\/em><\/p>\n [6]<\/a> Zack Whittaker, Here’s Where California Residents Can Stop Companies Selling Their Data<\/em>, TechCrunch (Jan. 2, 2020), https:\/\/techcrunch.com\/2020\/01\/02\/california-privacy-opt-out-data\/.<\/p>\n [7]<\/a> Id.<\/em><\/p>\n [8]<\/a> Feathers, supra <\/em>note 4.<\/p>\n [9]<\/a> See, e.g.<\/em>, Feathers, supra<\/em> note 4 (“During the [Connecticut] bill\u2019s public hearing last February, Duff said he looked out on a room ‘literally filled with every single lobbyist I\u2019ve ever known in Hartford, hired by companies to defeat the bill.’ The legislation failed.”).<\/p>\n [10]<\/a> Feathers, supra <\/em>note 4.<\/p>\n [11]<\/a> Id.<\/em><\/p>\n [12]<\/a> Id.<\/em><\/p>\n [13]<\/a> Id.<\/em><\/p>\n [14]<\/a> Id.<\/em><\/p>\n [15]<\/a> Id.<\/em><\/p>\n [16]<\/a> Id.<\/em><\/p>\n [17]<\/a> Graham Moomaw, Virginia’s New Big Tech-Backed Data Privacy Law is the Nation’s Second. Critics Say it Doesn’t Go Far Enough<\/em>, Va. Mercury (Mar. 30, 2021), https:\/\/www.virginiamercury.com\/2021\/03\/30\/virginias-new-big-tech-backed-data-privacy-law-is-the-nations-second-critics-say-it-doesnt-go-far-enough\/.<\/p>\n
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