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If there’s one question I’ve heard repeatedly over the course of the past two years it’s this:
Who the heck are you and why do you care so much about consumer privacy?
The truth is, it started as a simple conversation among friends at a social outing when I asked an engineer working for Google whether we should be worried about the subject—wasn’t ‘privacy’ just a bunch of hype, I asked?
His reply was chilling: “If people just understood how much we knew about them, they’d be really worried.”
That stuck with me.
And boy was he ever right – the more knowledgeable I became on the subject the more I realized this was a problem that was getting much, much worse. I also found out that under current law, consumers were powerless to do anything about it.
Not long after that evening, my friend Rick Arney and I were bemoaning the state of politics in our country. Our children are friends here in the San Francisco Bay Area, and we were talking about the world they’d grow up into, and the impossibility, it seemed, of getting good national legislation passed in these difficult times. He was extolling the power of California’s ballot initiatives, and their ability to cut through politics. We realized a ballot initiative could be the solution to enhance California consumers’ privacy.
“If people just understood how much we knew about them, they’d be really worried.”
While it was then possible (and still is) to ask almost any level of government what it knows about someone or something via a Freedom of Information request, consumers had no such ability with respect to businesses. That was our first focus, giving consumers such an ability.
We set out to examine whether a privacy initiative made sense. We researched existing laws, looked into past legislative efforts to safeguard privacy, and listened carefully to the concerns of privacy advocates, legal experts and technologists. We convened focus groups, where we learned of consumers’ deep frustration with the privacy ‘bargain’ we are all forced to accept, which so often boils down to: take it or leave it. Either use the product and accept its terms and conditions, or don’t use it. That’s your ‘choice.’
But in reality, what choice do you really have, given you must have a mobile phone or use a computer in order to function in today’s modern society?
Based on this research, we concluded an initiative would be the perfect solution to address a world where a small number of mega-corporations have access to almost all of your most personal information.
Whether it’s the terms you’re searching for online, where you eat lunch every day, your Facebook likes, what prescription medicines you’re picking up at the pharmacy, or how far and where you walked today, some of the largest companies on the planet know more about you than literally anyone else, and use this information to manipulate and sometimes discriminate against you.
With that great knowledge, comes great power—and with great power, comes great responsibility (and full disclosure, no, I didn’t write that myself, and the internet says that quote has many authors).
After two years of research, we drafted an initiative based on three principles: transparency, control and accountability.
In the final analysis, it seemed to us that since we already pay our cell phone and cable bills, our auto leases and music subscription services, shouldn’t we be able to tell those companies that they can’t also sell the personal information they obtain from us as users and customers? And as for ‘free’ services—well, as the saying goes, if you’re not paying for the product, you are the product.
In the fall of 2017 we submitted our initiative, and received the official Title & Summary in December 2017, which allowed us to start gathering signatures.
In early May 2018 we submitted 629,000 signatures, almost double the statutory requirement of 366,000 signatures necessary to qualify for the November 2018 statewide ballot.
In mid-May 2018, we were contacted by Senator Robert Hertzberg and Assemblyman Ed Chau, of the California Legislature, to see if I would withdraw the initiative from the ballot, if the California Legislature passed a law addressing our privacy concerns.
We replied that we would withdraw the initiative, if the Legislature passed a law replicating all its critical components, prior to our statutory deadline to withdraw, which was 5PM on Thursday June 28th, 2018.
Senator Hertzberg and Assemblyman Chau and their office staffs spent a lot of time drafting a proposed bill to address my concerns, and when I saw it, I joked that the chances of a so-called “legislative solution” had gone up by 50%: from 2 to 3%. The first draft I saw had no enforcement whatsoever, and my reply was that we had not done all this work to give the giant companies collecting all our info, a free pass.
However, somehow, by Monday June 25th, we had a deal, and in a whirlwind week, on Thursday June 28, 2018, AB 375, the California Consumer Privacy Act, was voted into law unanimously out of both the Assembly and the Senate, and was signed into law by Governor Brown prior to our 5PM deadline. As a result, I withdrew the initiative from the 2018 ballot.
People have asked me why I was willing to withdraw, after spending so much time and money gathering the signatures for the ballot.
I did so because from my perspective, the legislation was an incredible home run: it gave us everything we had sought at the outset back in 2015, when Rick and I started off down this road.
Below are some of the rights consumers will have as a result of the California Consumer Privacy Act:
Points 1, 3, 6, 7, 9, and 10 are either wholly or partially new in the law, i.e. were additions in the law that were not in the initiative. For example, the initiative had only required companies to tell you what categories of information they collected about you; the law requires they tell you what actual information they have on you. I have to give credit where credit is due, and Jim Steyer, founder of Common Sense Media, was the person who suggested asking for more rights, in return for withdrawing the initiative.
What did we ‘give up’ in return? The main trade-off we made was that the private right of action (consumer lawsuits) was limited to the area of data breaches only, not (as with the initiative) to the entire law. We thought this a fair limitation, given that the rest of the law is subject to enforcement by the California Attorney General, at up to $2,500 per violation.
I have heard from some privacy advocates who have characterized the agreement to withdraw the initiative as a sell-out, and who suggest that the Attorney General will never enforce violations of the act.
My response is: Rick and I come from the business world, and the idea that any business won’t take seriously the threat of the Attorney General of the entire State of California enforcing a law, where the penalty is up to $2,500 per violation, is ludicrous to us, and reflects a lack of understanding about how business actually works. All businesses we’ve ever encountered in over 25 years of working, just want to know what the law is, and how to follow it.
Finally, the law had one major advantage over the initiative: it was certain. While we continue to think we would have prevailed at the ballot box with California voters, no election’s outcome is ever certain, and we were happy to take the win early, and move on to protecting our gains.
In short, we are huge fans of the new legislation, the most comprehensive privacy legislation ever passed in the United States. It is landmark legislation, and we think it will become the first among many laws across the country aimed at returning control to consumers over their privacy.
I have taken no money from anyone (other than one cousin and a number of small online donors, thank you!) to help support this effort. I don’t work in technology, and this is in no way a business venture for me, nor is it for my friend and fellow board member Rick Arney. I am a real estate developer, and I have nothing to gain financially from this effort.
Facebook, Google, Comcast, AT&T, Verizon, Microsoft & Uber had contributed almost $2M to a PAC set up to oppose the initiative. We heard that they were planning a $100+ million campaign to oppose the November measure, and we had also heard from a separate source that Google alone was prepared to spend up to $40 million against us.
Given this level of opposition, we know that these giant corporations will continue to lobby and spend money in 2019 during the planning stage for the law, which goes into effect on January 1, 2020. Their desire will be to get the Legislature to weaken major sections of the law; or, if that proves impossible, then to get the Attorney General to issue regulations that diminish its reach.
Luckily, we can compete with Big Tech with less resources, because truth and public opinion are on our side. But, we still need to raise enough money to get our message out. So, if you could see your way to donating to our cause, we would be really, really grateful.
At the end of the day, we believe wholeheartedly in California: it’s still, to us, the land of opportunity and innovation, and the land where so much of American culture originates, a culture that depends on freedom and independence.
That freedom and independence seems under siege now, in a world where one corporation can share highly personal information about tens of millions of users. We think everyone should get a choice about how their personal data is being used, and that to a certain extent, democracy depends on that choice. We think everyone deserves to have their personal information protected, so that the bane of identity theft is minimized.
We know if we can protect our gains here in California, this movement will sweep the nation—and we know that’s why Big Tech is willing to spend almost anything to defeat it.
Thanks for reading, and thanks for visiting. We humbly ask for your support.
Alastair Mactaggart, Board Chair, Californians for Consumer Privacy
Rick has worked in the financial industry for over two decades, but some of his fondest work memories come from his time working in the California State Legislature after business school, where he was responsible for analyzing the financial impact of proposed laws. He believes in a future where consumers have meaningful control over their privacy, identity theft is minimized and children's profiles and preferences are protected.
Alastair Mactaggart has been building housing in the Bay Area for over 20 years. He believes that all Californians, and people worldwide, should have the fundamental right of data privacy and be able to control their OWN personal information. He believes that it's not right that companies you’ve never heard of, can buy more information about you (and sell it for a profit), than even your closest friends know. And that you have no control over the process. He advocates for the online privacy of children and believes that parents should have a choice about how their family's data is sold.
Robin Swanson is the general consultant and campaign manager for Californians for Consumer Privacy. Swanson is a strategist and communications expert with more than 20 years of political experience in Washington, D.C. and Sacramento, California. Swanson specializes in strategic communications and media relations, in addition to regularly providing on-air commentary for both local and national news programs. She is currently a regular political analyst on CNN and CNN International.