Helping Lawmakers Parse "Frankenstein" Online Consumer Privacy Laws

Professor Robin Feldman testified March 19, 2013 before the California Assembly Select Committee on Privacy, helping guide legislators through the thicket of privacy rights and laws as state leaders prepare to consider a slew of new privacy legislation in the coming months.

“Mobile devices have the potential to fundamentally alter the relationship between people and the data they generate,” Feldman told lawmakers. ”On the one hand, these devices promise tremendous power for both users and business. On the other hand, geolocation devices, that is, devices that know where we are at any given moment, can raise serious privacy concerns.”

Among bills lawmakers are considering is AB 242, introduced by Assemblymember Ed Chau (D-Alhambra), which would require commercial websites or online services to make its privacy policies available in plain language in 100 words or less, and to include a statement indicating whether personally identifiable information may be sold or shared with others, and if so, how and with whom the information may be shared.

Feldman noted the word “privacy” does not exist anywhere in the U.S. Constitution. Over the years and through hundreds of cases, courts have cobbled a federal constitutional right to privacy from the First, Fourth, Fifth, and Fourteenth Amendments, she said. “In a sense, the constitutional right to privacy is something of a Frankenstein’s monster: not only is it built from the pieces of other rights, but it is also a clumsy, lumbering thing, not known for its fine motor skills or lightness of touch,” Feldman told lawmakers.

States are far freer when it comes to regulating privacy, she testified. “California has been a leader in privacy legislation,” Feldman noted. For example, the California Constitution reaches far beyond the United States Constitution in that it explicitly lists privacy as an “inalienable right.”

“In this spirit of this Constitutional mandate, California has passed some of the strongest laws in the nation when it comes to protecting the privacy of its citizens and consumers,” she said.

California is also home to the most thriving startup communities anywhere in the world, Feldman reminded lawmakers. “It is important to work with these startups so that they develop the cultural norms towards privacy that we would like to see with emerging technologies. That way, we can stay ahead of the technology curve, rather than just trying to regulate it after it has been created,” she said.