Privacy Federalism

-- By PatricioMartinezLlompart - 10 Dec 2016

City and state governments are emboldened to take the lead on progressive policymaking nationwide as Republicans regain absolute control of the federal government. Whether we call it “progressive federalism” or “state rights for the left,” the future of liberal criminal justice, immigration, and climate change policy rests with locally-elected politicians willing to put up the good fight against the Trump Administration. The local is also an important arena in which to mediate, defend, and consider the fate of our right to privacy in the digital age.

Contra the federal executive’s and judiciary’s minimalistic efforts to protect digital privacy, in recent years, states and cities have taken measures of varying sorts to safeguard privacy as the Net’s behavior-collection capabilities became more far reaching. And our current historical moment makes the role of subnational governments as laboratories for political and legislative action of this sort only more urgent. Whatever enthusiasm for the future of individual privacy in hands of progressive or freedom-loving local politicians, however, must be qualified. The reach of state privacy laws seems insufficient and the arms-race for “smart cities” is positioned to make of our urban environs a massive behavior-collection Machine.

Contours of State and Local Action

Legislation

Proposals for a Consumer Privacy Bill of Rights and an updated Electronic Communications Privacy Act stall in Washington DC. Meanwhile, in Texas, state politicians acknowledge their constituents are “becoming increasingly wary that their lives are going to be no longer their own.” States ranging from California to Oklahoma have passed different privacy laws to protect individual information in a variety of contexts. Many of these laws were enacted in response to citizen demands for action after Edward Snowden’s 2013 revelations of the federal government’s mass surveillance program.

In 2003 California pioneered a data breach notification law that requires both private and public organizations to inform users if their data is breached or stolen. Similar statutes have been adopted in almost every other state. California was also the first state to mandate via legislation that commercial websites and online services publish a privacy policy. The California Online Privacy Protection Act applies to mobile applications and was amended in 2013 to also require disclosures by websites and other online services that monitor user activities in the Net “to build a profile of [user] behavior and interests.”

Most recently, twenty-five states have legislated to disable employers from demanding access credentials to their employees’ personal social media accounts as a condition of employment. More than a dozen states have adopted similar bills to protect student social media accounts from unwarranted access by their academic institutions.

Enforcement and Administration

Beyond its provisions, the teeth of subnational privacy law lie in its enforcement and administration by the pertinent government authorities.

State attorney generals are front and center to making privacy legislation more than a gimmick. In 2013, Google settled a case filed by 38 states for violations of people’s privacy through its Street View project; the company admitted to collecting passwords, email, and other personal user information. Also in 2013, Google entered into a $17 million settlement with 37 states plus the District of Columbia for bypassing Safari’s default privacy settings and enabling undisclosed third-party user surveillance.

Perhaps in the clearest preview of imminent local-federal confrontations, Mayor de Blasio recently announced the municipal government will shield from the feds data of undocumented immigrants participating of idNYC. The program was created, in part, to provide undocumented immigrants residing in New York with a formal ID. The Human Resources Administration manages the initiative and retains the right to destroy records relating to proof of identity or residency of ID solicitants, per the program’s 2014 enacting legislation.

Is Federalism Salvation?

State and local action to counter the continuous lessening of our privacy in the digital age is especially commendable given the federal government’s unwillingness to act. But just from the brief overview of legislation and enforcement actions outlined above it is clear state and local authorities have yet to substantially limit online service providers’ ability to profiteer off our digital lives, the fundamental unfreedom and injustice of our Net society.

Disclosure does not equate protection. Service providers still act under the law when they collect our behavior and sell it like they wish, as long as they announce its collection. Knowing what they are collecting, but still allowing them to collect and surveil, is not enough if we envision privacy as a robust triad of secrecy, anonymity, and autonomy. And even if we just hope for compliance with the current regulatory regime’s restrained reach, $7 and $17 million settlements seem meager deterrents for service providers like Facebook and Google.

Moreover, local leaders’ public statement announcing they will stand off federal officials who attempt to intrude upon the privacy of their urban denizens conflicts with their willingness to adopt the smart city gospel. Making city services more efficient and user-accessible should certainly be a priority for any municipal administration, but is installing cameras and censors in every corner—creating a “total information awareness scheme”—the answer to that? If we don’t like our city’s privacy policy, do we have the ability to opt out?

Salvation is Individual

Despite the observable limits of current attempts at state and local privacy lawmaking, in the near future any further legislative or legal innovations to protect our freedom from the Net are likely to stem from the subnational scene. Local public officials across the partisan spectrum have demonstrated their willingness to talk privacy and grapple with the implications of its erosion in the digital era. It’s on us to mobilize and advocate for better. A potential first step: demanding legislation that bans the sale and requires the deletion of metrics collected through the smart city infrastructure. We may not be able to opt out from our city’s surveillance apparatus, but we are still free to opt into our political process and demand something done about it.

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