Should California Rule the Internet?

October 8, 2013

by Adam Thierer
Technology Liberation Front

Michelle Quinn of Politico was kind enough to call me a few days ago and ask for comment for her story about “California Driving Internet Privacy Policy.” Quinn’s article offers an excellent overview of how the Golden State is gradually taking on a greater regulatory role for the Net, at least as it pertains to matters of online privacy. She opens by noting that:

With the federal government and technology policy shut down in Washington, California is steaming ahead with a series of online privacy laws that will have broad implications for Internet companies and consumers.In recent weeks, Democratic Gov. Jerry Brown has signed a litany of privacy-related legislation, including measures to create an “eraser button” for teens, outlaw online “revenge porn” and make Internet companies explain how they respond to consumer Do Not Track requests. The burst of activity is another sign that the Golden State — home to Google, Facebook and many of the world’s largest tech companies — is setting the agenda for Internet regulation at a time when the White House and Congress are moving at a much more glacial pace.

When she asked me how I felt about this, I noted that: “California seems like it is willing to declare the Internet its own private fiefdom and rule it with its own privacy fist.”  And, no matter how well intentioned any of these new California policies may be, the ends most certainly do not justify the means.

As I noted in a January essay here on “The Perils of Parochial Privacy Policies,” such state-based meddling with the Internet and globally-interconnected networks and platforms raises profound constitutional issues. It threatens the free flow of commerce and speech. Even if it is the case that some of us may, at times, want some forms of commerce and speech limited by state action, I would very much hope that we could agree that having 50 states creating their own State Privacy Offices or State Data Protection Bureaus would probably not be a wise move. This is exactly the sort of thing that the Commerce Clause was put in place to protect against when interstate commerce is on the line. And it is also the sort of thing that might even be preemptable under the First Amendment since some speech issues are in play here. And I’m not even getting into the wisdom of some of the individual policies that California is pursing, many of which are highly impractical and likely extremely costly.

I hope that all those folks who say they really care about “Internet freedom” will make a stand against what California is doing here. But something leads me to believe that, once again, selective morality will enter the picture simply because of the sensitive and highly emotional nature of all online privacy and child safety issues. But, again, the ends do not justify the means. The Internet does not belong to California and they should not be allowed to make it their own regulatory fiefdom.

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