The Clock Ticks Down on the Bad Washington Privacy Act

What will happen?  A bar chart.  Nothing passes House: 54.5%.  Carlyle's version passes: 9.1%.  Hansen's version passes: 9.1%.  Kloba amendments pass: 27.3%
Twitter poll, Friday April 16

Last updated: April 21

TAKE ACTION!!!

Tell your legislators: don't sell us out to big tech! Ask them to SUPPORT the Kloba amendments - and OPPOSE the Bad Washington Privacy Act if the amendments don't pass

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There's less a week left in the Washington state legislative session.   A few months ago, the Bad Washington Privacy Act (SB 5062) seemed like it was sure to pass. Sen. Reuven Carlyle's weak, industry-backed bill had sailed through the Senate 48-1 – and House Civil Rights and Judiciary Committee Chair Drew Hansen had refused to give a hearing to Rep. Shelley Kloba's People's Privacy Act (HB 1433).  

But now, the Bad Washington Privacy Act is on the ropes, with its supporters' claims of "consensus" revealed as an illusion.

  • House committees advanced Rep. Hansen's version of SB 5062 on straight party-line votes.  This version managed to displease almost everybody:  the Tech Equity Coalition, tech companies, privacy advocates, progressive grassroots activists, and Republicans all oppose it.
  • Rep. Kloba has introduced amendments fixing many of the bill's problems, with broad support by immigrant rights, civil rights, and civil liberties groups
  • Other amendments have been introduced as well, almost two dozen all together – and the House didn't vote on  SB 5062 before its cutoff on Sunday, April 11,

The House still has a chance to pass something before the session ends this Sunday – the Senate version, Rep. Hansen's version, Rep. Kloba's amendments, or something else.   If the House passes something that's different than the Senate version, then there's a multi-step process to try to get to agreement.  That's what happened in 2019 and 2020  – and negotiations collapsed.

Especially since there's other critical legislation still to be resolved, I can certainly see why most people don't think the House will pass anything this session.  That would still be a huge victory for the Tech Equity Coalition and allies – the third time in a row they've stopped a bad bill from passing.  

But for the last several months we've been saying that the best outcome is meaningful privacy protection for Washingtonians this legislative session – and it's still achievable!  

So let's look in a little more detail at the pressures the legislators are under,  the various options on the table, and why the House can and should pass the Kloba amendments.  

"We've got to pass something"

Several of the legislators I've talked with have been quite candid about the pressure they're under to pass something this session.   And even though the Bad Washington Privacy Act won't actually protect Washingtonians' privacy, passing it at least lets lawmakers claim they've done something.  Big tech and their allies will continue to claim that the bill offers a "gold standard" with "robust enforcement" and "strong protections" of "unambiguous rights."   Legislators can point out that the bill they passed is stronger than the Even Worse Virginia Privacy Act.   Hooray!

Of course, the risk to legislators, is that their constituents might not believe those claims.  On email threads with the House Civil Rights and Judiciary committee, a handful of grassroots activists were quite blunt in their feedback that the Bad Washington Privacy Act is bad.  They also made it clear that they thought legislators who were supporting the Bad Washington Privacy Act were representing big tech's interest instead of their constituents.

So while in some ways voting to pass something weak seems like the path of least resistance – it keeps big tech happy, and lets legislators claim a win – there's a really high potential cost to it as well.   Do they want to be seen as selling their constituents out to big tech?  

And Republicans' party-line votes against Hansen's version of the bill, on the grounds that it doesn't go far enough to protect privacy, make it an even more fraught situation for Democrats.  With immigrant communities, civil rights groups, and progressive activists all opposing the extremely unpopular Bad Washington Privacy Act, will Democrats decide to hand Republicans a campaign issue and antagonize their base by pushing something through?  

Big tech says yes, legislators should sell out their constituents!

A male in a tie and jacket saying "Consent is important, but ..."   The chyron at the bottom identifies him as Ryan Harkins, Microsoft Corporation, testifying to the House Civil Rights & Judiciary Committee
Microsoft's Ryan Harkins advocates for the Bad Washington Privacy Act: "Consent is important, but ..."

None of that's a problem from big tech's perspective.  They think the Sen. Carlye's "Classic" version of the Bad Washington Privacy Act is just fine.  It doesn't make them get consent before exploiting people's data, it doesn't let people sue them if they break the law, it's got all kinds of loopholes and exemptions that neuter enforcement.  What's not to like?  

And even though big tech opposes Rep. Hansen's version, which has some minor improvements such as a very limited private right of action that allows people to sue for injunctive relief (but no damages), that's probably just posturing for negotiation purposes.  Last year, they were willing to settle for a limited private right of action in last year's final negotiations.    As I said in the Appropriations hearing, they'll probably wind up describing the Hansen version as a "reasonable compromise" – especially if additional amendments to weaken it further.

Because what big tech really really doesn't like is the Kloba amendents – or the even stronger People's Privacy Act.   Both of these make tech companies get consent before exploiting people's data.  Both of these have much stronger enforcement.

So for the third year in a row big tech and Sen. Carlyle are demanding that legislators let them exploit our data and leaves Washingtonians unprotected.   The House said no in 2019 and 2020, but the message clearly hasn't been received.  

This is actually a good reason that the House should pass the Kloba amendments overwhelmingly.   It's a good way to respond to big tech's insistence that legislators sell out their constituents by saying NO much more loudly – and it also says YES to meaningful privacy protections and holding big tech accountable.

The case for the Kloba amendments

Emilie St. Pierre of Future Ada: "Opt-out doesn't protect survivors"

And there are other even better reasons to pass the Kloba amendmets.  Start with the policy case.  As 40+ Tech Equity Coalition organizations and allies write

Unlike other versions of SB 5062, Rep. Kloba’s striking amendment has a fully opt-in approach, contains a strong enforcement mechanism with a private right of action including a right to recover damages, allows local jurisdictions to pass stronger laws, and removes some loopholes. Although this amendment can still be improved, it is a big step forward and in line with HB 1433, the People’s Privacy Act, and addresses the four key changes we have recommended be made to SB 5062.

During the hearings and in written comments, experts from groups like Consumer Federation of America, La Resistencia, CAIR Washington, Future Ada, InterIm CDA, EFF, and ACLU of Washington have gone into detail on all of these.   On opt-in, for eample, the current bill's weaker opt-out framework fails to protect immigrants, survivors of stalking, harassment, and domestic violence, and disabled people using screenreader technology.  

And as well as being good policy, these are popular positions!   Opt-in – making companies should have to get informed consent before they collect, share, or sell your data – typically polls over 80%.   Most Washingtonians think they should be able to sue companies who break the law and (if they win) get compensated for the harms that have been done.

And from House legislators' perspective, a bipartisan attempt to pass good legislation is a much better outcome for both parties than just giving up now.  Even if the Senate once again refuses to negotiate, the House passing strong privacy protections would be a significant legislative success that builds even more momentum for the discussions next session.

"Perfect is the enemy of good"

But if the Senate once again refuses to negotiate, then the House has to choose between passing the Bad Washington Privacy Act and nothing.   After not getting their way in 2019 and 2020, tech lobbyists take advantage of this by warning legislatures they'll be seen as legislative failures if they don't pass something this year.  One of their favorite talking points in aid of this is "perfect is the enemy of good".

But the Bad Washington Privacy Act isn't good.  It's bad.  

Don't take my word for it.  Listen to groups like One America, La Resistencia, CAIR Washington, Future Ada, InterIm CDA, MAPS-AMEN (American Muslim Empowerment Network), Japanese American Citizens League Seattle Chapter, Black Lives Matter - Seattle King County, Puget Sound Sage, the John T. Williams Organizing Committee, Urban League of Metropolitan Seattle, Eastside for All, Real Change, and ACLU of Washington.  True, there are also some groups who once the non-profit exemption got added decided that the Bad Washington Privacy Act was good enough.  But none of them are looking at it from the perspective of people who are immigrants, people of color, or Muslims.

The Bad Washington Privacy Act is bad – and a bad bill is worse than no bill.  So in reality standing up to big tech for a third year in a row will be actually a huge legislative success.

Why is a bad bill worse than no bill?  One big reason is that passing the Bad Washington Privacy Act gives the legislature’s endorsement to allowing predatory and exploitative behavior with no real consequences – and lends credence to big tech's over-inflated claims for how much protection the bill gives people.    

In their Senate testimony, tech lobbyists were very candid that one of their goals in passing a privacy law is to reassure people that their data is safe so that they'll share more.  But people's data won't actually be safe if the Bad Washington Privacy Act passes.   So if legislators pass this bill, they're encouraging people to think they're safer than they are – and share more data, putting themselves even more risk.  

Another important reason a bad bill is worse than no bill is that once something is passed, it's very hard to change it.   Last year's legislation on governmental use of facial recognition is an excellent example of this.   Since then, the landscape has shifted significantly.  Cities including Boston, New Orleans, and Portland have joined San Francisco in banning governmental use.  Vermont became the first state to ban it.  There's potential federal legislation, with bipartisan support.  

But when this year's session rolled around, Sen. Carlyle refused to hold a hearing on Sen. Bob Hasegawa's facial recognition moratorium bill, telling Geekwire he did not feel a need to re-engage in that issue at this time:

“The legislation that we passed last year created a framework for how the public sector and the private sector can utilize facial recognition technology in responsible ways,” he said. “I feel like we made a material and meaningful policy step forward.”

Something similar's very likely to happen if the legislature passes a bad privacy bill this year.   After doing so much work, why not wait to see how it works out before changing it?   The illusion of protection today will become a further barrier to real protection tomorrow.

The stakes are high!

But then again, big tech's influence is strong here.  So really, anything can happen.

There's a lot of other critical legislation still to be resolved as well, and it's hard to know how much time and energy legislators have to work on the privacy bill.   On the one hand that makes it less likely that anything will happen ... on the other hand, this is exactly the kind of situation where big tech could try to sneak something through.

Whatever happens this year, the dynamics will be very different when the battle continues in next year's legislative session.   As we've been fighting the bad bill, we've also gotten a chance to do more advocacy for the good features of the People's Privacy Act.  

The People's Privacy Act protects people, not corporations, and  has bi-partisan sponsorship as well as broad support from immigrant rights, civil rights, civil liberties, consumer, and grassroots activism groups.   It's a much better starting point for next year's discussion than the Bad Washington Privacy Act was this year.

Another way the dynamics will hopefully be different next year would be if Senate Democrats will wake up and smell the coffee.  Sen. Carlyle's approach hasn't worked in the past and so is not likely to work in the future.  They really should put somebody else in charge next year.  

And whatever happens in Washington has ramifications in other states as well as with federal legislation.  If the Bad Washington Privacy Act passes here, it will reinforce the strategy Todd Feathers discusses in Big Tech Is Pushing States to Pass Privacy Laws, and Yes, You Should Be Suspicious – and be a shot in the arm for Rep. DelBene's very similar bad federal legislation.   But if big tech's plans once again get derailed here in Microsoft's and Amazon's home state ... that could cause some broader hiccups as well.

So the stakes are high as Washington's short legislative session wraps up.   Stay tuned for more!  

And, when you get a moment, please tell your legislators not to sell us out to big tech!   Ask them to SUPPORT the Kloba amendments - and OPPOSE the Bad Washington Privacy Act if the amendments don't pass.

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