Fact Check: WA's Leadership on Privacy Legislation

Monday, February 28, 2022
On February 14, 2022, the Seattle Times published an op-ed authored by Michael Schutzler of the Washington Technology Industry Association entitled “Restore WA’s leadership on privacy legislation.” It makes sense that an industry association would support regulations like SB 5062, which were written by industry, for industry.
Unfortunately, Mr. Schutzler’s piece contains many inaccuracies and misleading statements about both SB 5062, and a new bill that borrows much of SB 5062’s framing, HB 1850. The Tech Equity Coalition is a group of civil rights and civil liberties-focused organizations and individuals working to center the voices of historically marginalized communities in decisions about technology. As members of this coalition, we would like to correct the record by fact checking Mr. Schutzler’s claims.
The first claim that should raise eyebrows is that passing HB 1850 would cause apps and tools as we know them to be fundamentally impaired. This is not true. In fact, HB 1850 and SB 5062 would have virtually no effect on the functionality of online apps. These bills would also do little to curb current privacy abuses, and would largely maintain the status quo, because they do not require companies to get people’s permission before they collect, use, or share our information. In fact, Washington Attorney General Bob Ferguson, a key state official responsible for consumer protection, has stated that passing SB 5062 would actually “eviscerate” current privacy protections in Washington.
The next claim is that Washington is losing its status as a leader in privacy by “fiddling around with definitions and processes” instead of passing the bill that industry favors. This description diminishes the immense amount of work legislators have done over the past three years attempting to improve the weak regulations in SB 5062. Their work has often been stymied by industry lobbying aimed at preserving the status quo. Lawmakers also introduced a strong alternative, the People’s Privacy Act, HB 1433, which has strong support from privacy advocates, civil liberties and civil rights groups, and activists and organizations that serve historically marginalized communities. Yet, HB 1433 still has not been granted a hearing. Leadership means bringing all stakeholders to the table to create strong, meaningful legislation. If anything, it has been big tech lobbying that has impeded a democratic and community-driven process.

The assertion that lawmakers and advocates aren’t aware of the privacy regulation landscape in the U.S. and around the world is also false. Not only is there a broad awareness, but lawmakers and advocates have also demanded that the best parts of those regulations, such as opt-in consent, be incorporated into Washington policy. Indeed, it is that knowledge of meaningful protections elsewhere that has amplified our call for leadership to ensure that our laws here in Washington are strong and loophole free.

The writer also asserts that Washingtonians are already getting privacy protections from European and California laws. That is only true on the fringes. Most companies only follow European and California laws in those jurisdictions, which can be found in the fine print of many privacy policies. It’s also important to recognize that California’s law was widely opposed as being too weak by civil rights and privacy organizations, including Color of Change and the ACLU of Northern California, and not supported by the Electronic Frontier Foundation. For Washington to truly be a leader, and to meaningfully protect its residents, it needs to pass a bill much stronger than SB 5062.

Here’s our final fact check. Mr. Schutzler claims that SB 5062 is the foundation for law in twelve other states, but not in its home state of Washington. While that is a partial truth, it is misleading. SB 5062 has been the template for laws in Virginia and Colorado, where corporate lobbyists have managed to get their preferred language passed. A recent Reuters investigation reported that the passage of the weak Virginia law was due in large part to Amazon’s lobbying efforts.

Let’s be clear: industry lobbyists are hard at work all across the country pushing weak bills. While SB 5062 is the template for proposed legislation in nearly a dozen states, this is more a testament to Big Tech’s persistent lobbying for weak privacy laws than an indication of SB 5062’s ability to protect people from data abuse. The status quo isn’t working, and Big Tech lobbying isn’t going to fix it.

Has Washington lost its chance to be a leader in data privacy? Absolutely not. One thing we do agree with Mr. Schutzler on is that  lawmakers should look forward, not backward, which is why they should oppose SB 5062, a bill that has been soundly rejected three times already.

Instead, legislators should support truly strong data privacy proposals like the People’s Privacy Act, which requires companies to get people’s affirmative, unambiguous, and informed consent before they collect, use, or share our information.

Washington does have an opportunity to be a leader in data privacy. Our lawmakers can achieve that by basing policy decisions on the facts, putting people first, and listening to those most affected by data abuses. SB 5062 and HB 1850 do not provide the strong protections we need.