California Continues to Lead the Way to Maintain Online Privacy

By: Robert V. Hawn, Esq.

The simmering pot of internet privacy has finally come to a full boil. While the topic has been debated for almost two decades, and a who’s who of web-based giants have made their positions well known, the idea that any regular person could knowingly have any or all of their personal information used, shared, or sold without as much as a simple warning or being asked for permission to do so, has never become more of a reality until late March 2017, when Congress in Washington D.C. voted to repeal federal rules guarding internet privacy. The rules had been put in place by former President Obama, but the repeal was signed by President Trump before these rules could be officially enacted.

A month after the repeal was signed, the public majority was still reeling from the move by the FCC and the administration. By then 14 states, including California, were either taking steps to form legislation in response or had already done so. “California has typically led the nation in privacy laws, but we need to make them more meaningful,” said Assemblyman Ed Chau (D- Monterey Park).

Fast forward to Monday, June 19th, when Mr. Chau introduced a bill to counteract the federal repeal. Assembly Bill 375, also known as AB 375 or the California Broadband Internet Privacy Act, is patterned after the federal provisions that had been in place and aims to protect all online activity and online privacy of California consumers by state law. “The idea that a person should have some say about how their Internet service provider can use, share or sell their personal information is not a controversial question for everyday consumers- it is common sense,” said Chau. “Congress and the Administration went against the will of the vast majority of Americans when they revoked the FCC’s own privacy rules, but California is going to restore what Washington stripped away.”

Here are the boiled-down specifics of AB 375: ISPs would have to receive opt-in consent from their customers to utilize their access to a customer’s information in any way. All consumers would withhold the right to revoke their consent at any time. The opt-in requirement would apply to web browsing history, application usage history, content of communications, Internet Protocol “IP” addresses, geolocation data, financial and health information, information pertaining to minors, names and billing information, Social Security numbers, demographic information, and other personal details such as physical addresses, email addresses, and phone numbers. The bill would also prohibit ISPs from refusing to serve, or limiting service to, customers who don’t provide consent, and it would prevent ISPs from charging penalties to customers or offering discounts or other benefits based on the customer’s decision to provide consent.

So far, AB 375 appears to have a fighting chance. The road to enactment will not be easy. However, the bill has support from over 25 civil rights, consumer protection, privacy, technology, and non- profit organizations, including the ACLU, Electronic Frontier Foundation, and the Privacy Rights Clearinghouse. The bill also appears to have the advantage over any federal pre-emption that would nullify California’s right to implement internet privacy laws, thanks to the Communications Act of 1934. The Act, which was signed into law by Franklin D. Roosevelt, is responsible for the creation of the FCC and contains specific divisions of federal and state duties, including potentially allowing states to have authority over the FCC in cases such as this.

As the most populous state in the U.S., California could have a major impact on the actions of ISPs. The bill currently sits in the California Senate in the Energy, Utilities, and Communications Committee. As of June 13 th , its hearing before the committee was postponed. In the meantime, the national debate to protect online privacy has very strong support in favor of greater protections for consumers, despite the stance of the Trump administration and the current FCC. Members of the public will have until Tuesday, July 18 th to send comments to the FCC on their website, . Replies to those comments are due by August 16 th , after which the FCC will make a final decision.

The information appearing in this blog does not constitute legal advice or opinion. Such advice and opinions are provided by the firm only upon engagement with respect to specific factual situations. Specific questions relating to this article should be addressed directly to Strategy Law, LLP.