Internet Law Center founder Bennet Kelley joined Santa Clara University Law School Professor Eric Goldman and over 50 other privacy professionals to oppose Proposition 24, the 52-page Consumer Personal Information Law and Agency Initiative.
We are privacy professionals or other privacy experts. Proposition 24, the California Privacy Rights Act (CPRA), will benefit us financially because it will increase demand for our services. Despite that, we oppose the proposition. Those of us in California are voting NO on Prop. 24, and all of us encourage Californians to vote NO as well
How We Got Here:
Amending a Law After 53-Days
To understand why, you have to understand how we got here. As Professor Goldman points out, in 2018, Alastair Mactaggart, wrote the California Consumer Privacy Act as a ballot proposition, “working with virtually zero public input or scrutiny” that severely limited the legislatures ability to amend it. Once that measure qualified for the ballot, Mactaggart made the legislature an offer – he would withdraw the proposition if the legislature could pass something close to his 10,000 word proposal in the 7 days remaining to withdraw. The legislature complied and passed the California Consumer Privacy Act which just went into effect in January 2020 and the Attorney General’s regulations (which included multiple drafts, public comments and hearings over a period of months) became effective on August 14, 2020.
In November 2019, even before CCPA went into effect, Mactaggart was submitting this new proposal to the Attorney General for signature which creates a new privacy bureaucracy and limits amendments to changes that are ” consistent with and further the purpose and intent” of the measure or otherwise “enhance privacy”. See Prop 24 Overview.
Teddy Roosevelt explained that the initiative process and representative government are meant to be complimentary not adverse. I have long contended that
[i]nitiative proponents should be able to draw on the legislature’s expertise through public hearings on all qualifying measures and should be permitted to incorporate any recommended changes. A summary of the legislature’s recommendations and findings also should be included in the voter guide.Special Election Sheds Light on Flawed Initiative Process, Santa Monica Daily Press (November 25, 2005)
That, however, is not the system we have today in California. Instead, with early voting having started on October 5, Californians are being asked to approve a 52-page amendment to its privacy laws drafted by a billionaire without public input a mere 53 days after the regulations for the existing law went into effect based on a 93-word ballot summary.1
The statement of opposition by the privacy professions (who by the way stand to gain from the confusion and litigation that will ensue should this pass) includes the explanations of several signatories including my own (the first one):
Why We Oppose Prop 24
- “I do not believe that a complex privacy law, which will have the effect of regulating most US websites and which severely restricts amendments, should be enacted based on a three-sentence summary. That is the job of the legislature.”
- “We are currently only four months into the period of enforcement of the CCPA. We are, realistically, only beginning to see the effects of what that law has done. At least under the CCPA, we have the ability to make changes via the legislature as needed in a timely fashion. Codifying what is essentially the same text and then making it harder to fix known and unknown issues, when we still haven’t gotten the existing law working correctly, is a path that will create more substantial harm to the very people it is supposed to help.”
- “There has been insufficient time to assess the impact of CCPA enforcement starting earlier this year to completely rewrite the California’s privacy laws again and add additional complex regulations to this area. Such hurried legislation, especially in a ballot proposition, is irresponsible, and a poor way to treat those who spent significant time and energy over the last couple years making their businesses comply with the CCPA.”
- “Vote NO on Prop 24! Prop 24 is very poorly written and will make a mess of an already very hastily written California Consumer Privacy Act (CCPA). The CCPA hasn’t even been in effect for a year, and already, individuals seek to amend it with Prop 24. We should understand the impacts of the CCPA and seek feedback on the loopholes, failures, and issues with the CCPA through a public process before we pursue amending it. Privacy laws and amendments to privacy laws should be passed by the California legislature through a transparent and thoughtful process that solicits feedback from the public, including consulting with privacy experts. Instead, Prop 24 significantly limits the legislature’s ability to amend and improve California privacy law. Prop 24 was written behind closed doors, without a transparent and open conversation with the public or experts. The issues with Prop 24 are even more apparent when you realize that major privacy civil liberties groups like the ACLU oppose Prop 24 as well. Californians deserve a better, thoughtful, more comprehensive privacy law. Please, please vote NO on Prop 24.”
- “This is not how law should be made.”
Privacy Groups Oppose Prop 24
Proposition 24 has some strong political supporters, with former Presidential candidate Andrew Yang not only endorsing the proposal but now leading the fight for it.
But there are a number of privacy advocates opposing Prop 24 in addition to these privacy professionals including Mary Stone Ross who helped draft the CCPA initiative, the ACLU, the Electronic Frontier Foundation, Californians for Privacy Now, Center for Digital Democracy, Consumer Action, the Consumer Federation of California, Public Citizen and the League of Women Voters among others. That’s right – privacy advocates oppose Prop 24.
As the San Francisco Chronicle points out in opposition:
There are no advancements to law in this initiative that could not be enacted by the California Legislature, after public hearings and vetting to assure they actually achieve their intended purpose and the ability to course correct for unintended consequences that emerge.
Simply put, too much is at stake, since this will impact, the entire U.S. economy at a time of deep economic crisis and to make such sweeping changes without taking the time to get it right is just plain irresponsible.
1If we amended the US Constitution every 53 days we would have 1,673 amendments by Election Day 2020.