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Privacy was on the ballot

on tech

Ah, election week. Whether you preferred to dual-screen your Zoom classes with John King’s magic smartboard or to refresh the FiveThirtyEight blog, last week was stressful regardless of political leanings. As the ballots were recorded, people sat eager in anticipation. Who would be leading our nation? 

Slowly but surely, we received the answer to that question (Congrats, Biden and Harris!). But just as quickly as we heard the news, the pundits began their predictions: What would be the Biden-Harris administration’s top priority? What would happen to the economy, to healthcare, to education, to national security? What about the internet? 

As we have written before, the internet—and all that the term encompasses—poses some of the greatest threats to our democracy and to our society, from widespread misinformation and algorithmic bias to privacy abuses and Big Tech’s monopolizing behaviors. The fact that major news outlets, like The New York Times, had to dedicate entire sections to “tracking viral misinformation” about this year’s election only underscores the relevance of tech policy issues to the American people. And how could we forget about this week’s mega-feud between President Trump and Twitter?

But, hey, we’re not here for more punditry. We’re simply here to remind you that our incoming elected leaders have the most power in addressing the aforementioned issues. Unbeknownst to many Americans, perhaps even you, the future of the internet was on the ballot this year. 

In California, the future of privacy was, literally, in the hands of voters. California’s Proposition 24, which expanded the California Consumer Privacy Act and created the California Privacy Protection Agency, passed with just over 56% of the vote

In the world of technology policy, where users and consumers often do not have a seat at the table when discussing hot-button issues, the presence of Proposition 24 was encouraging. And it was not the first time Californians have put pressure on their state legislators to crack down on Big Tech’s record on privacy. While Congress has floundered in the realm of privacy legislation, California state law has already expanded to protect the personal data of state residents.

The initial Consumer Privacy Act, which took effect earlier this year, provided people logging on from California I.P. addresses with an expanded set of rights over their personal information, namely the right to understand what information companies are collecting and the right to opt out of collection.

Whether you agree or disagree with the fine print of Proposition 24, it’s clear that we’re seeing a new path forward for privacy advocates: the ballot box.

Of course, ballot measures may not be enough to work out the fine-tuned details of privacy legislation, and states passing individual ballot measures will not be enough to correct the patchwork of tech policy that currently exists across our country. But ballot measures can help demonstrate to the federal government what we, as constituents, prioritize. 

The outlook for federal privacy legislation in the next administration is still unclear–as we’re writing this, control of the Senate is still up for grabs, with two seats in Georgia headed to a runoff election in January. We’re not quite sure what the dynamic will be between the White House and Congress.

We’ve seen enough of the Congressional failure to address other components of technology policy (*cough* Section 230 *cough*) to know that, with a divided legislature, our odds of getting landmark federal privacy legislation—akin to the European Union’s General Data Protection Regulation (GDPR)—are slim.

While playing partisan politics in Congress may stall meaningful federal privacy legislation, voters have had enough of unintelligible privacy policies and shadowy uses of their personal data, and ballot initiatives can put pressure on legislators to be more responsive to their constituents.

According to a study from the Pew Research Center, over 80% of Americans feel that they have very little control over the data the government and companies collect about them, and a similar proportion feel that the benefits of companies collecting their personal data are outweighed by the risks.

This lack of control is something that permeates all of our online interactions. When almost three-quarters of Americans think they’re being tracked by companies and nearly half are surveilled online by the government, that creates a chilling effect. Our fundamental democratic rights, including freedom of speech and freedom of assembly, are at risk when corporations and governments can monitor every word we’re saying. People of color, in particular, are disproportionately impacted by a lack of autonomy over personal data, particularly when it comes to law enforcement access to data.

Poor handling of personal data online and the risk of data breaches has made Americans more wary of the kinds of products and services they interact with. According to another study from the Pew Research Center, more than half of Americans opted to avoid a product or service based on these concerns.

As we continue to cede more ground on data privacy, companies and governments are able to expand the surveillance tools at their disposal. Americans are uniquely vulnerable—while other countries are moving to protect personal data, the collection and use of our data is widely unregulated outside a handful of states and localities.

Therefore, California’s success with Proposition 24 shows us a path forward: getting privacy on the ballot in another 49 states.

Ballot initiatives are different from down-ballot races. They don’t come pre-filled with a D or R by the headline—although your preferred political party may endorse one choice or another, there’s more opportunity to build bipartisan, grassroots advocacy around ballot initiatives that can make privacy a priority.

At the end of the day, it comes down to a question for the voters. How do you value your privacy and how can we protect it in our increasingly digital world?

It’s not a perfect fix. In referendums or ballot initiatives, complex topics like encryption and law enforcement access to data can be poorly articulated in what amounts to a few (perhaps misleading) sentences ahead of a “Yes” or “No” on a ballot. Even if we may all agree that our data needs increased protections, encapsulating how we get there with only two answer choices can yield problematic results. Additionally, influential tech companies, who spend billions of dollars on lobbying initiatives, are unlikely to sit on the sidelines. And, if the future of privacy truly comes to rely upon solely ballot initiatives in all fifty states, then we better grab some popcorn and get ready for a long haul. 

So these ballot measures aren’t a silver bullet—hardly anything in tech policy is. But they are, nonetheless, a worthy tool to build political will for the next administration and legislature to take on new priorities: privacy, antitrust, misinformation, and more. It’s a clear-cut way for voters to show resounding support for initiatives on the tech policy agenda and to hold their elected officials accountable if they fail to deliver for their constituents.

In our tech policy ecosystem, we have all sorts of stakeholders. Legislators, think tank researchers, lobbyists, foundations, and the tech companies themselves are just some of the actors that shape our policy.

But rarely do any of those stakeholders represent the interests of arguably the most important tech policy constituency: the users.

That’s because the way we think about privacy isn’t necessarily the same way we think about economic or health care policy. Each user’s lived experiences will shape how they interact with the internet, and each user will inevitably have different ideas of how their data is protected.

Those ideas can be brought to life in our legislatures, but it all starts on the ballot.

Jessica Edelson and Niharika Vattikonda are Trinity juniors. Their column, “on tech,” usually runs on alternate Thursdays.

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