Assemblymember Ed Chau, D-Monterey Park. Courtesy photo

SACRAMENTO—California on Monday joined more than a dozen other states that have introduced internet privacy legislation after Republicans in Washington and the Trump administration repealed President Barack Obama-era rules limiting what AT&T, Comcast and other broadband providers can disclose about their customers’ online habits.

Assembly Bill 375, patterned after the federal provisions, would require internet service providers to obtain “opt-in” consent from customers before using or selling their information, such as what sites they’ve visited, how much time they’ve spent there and what apps they’ve downloaded. It would also bar ISPs from charging a penalty or offering a discount based on whether a customer gives their consent.

“When the government at the federal level fails to act, the states have to lead the way,” Richard Holober, executive director of the Consumer Federation of California, said at a capitol press conference. The bill has the support of privacy and civil rights groups, including the American Civil Liberties Union of California, the Electronic Frontier Foundation and the Privacy Rights Clearinghouse.

Assembly Member Ed Chau, D-Monterey Park, author of the bill, said: “With AB 375 we will attempt to restore what Washington stripped away.”

What’s the impetus for this new bill?

The Federal Communications Commission under the Obama administration had crafted new rules giving consumers more say in how their online activity is shared. ISPs complained that the regulations unfairly treated them differently than other web-based companies such as Facebook and Google, which also collect information about their users and were not subject to the rules.

The Republican-controlled U.S. Congress and the Trump administration repealed the new restrictions before they could take effect.

“The rule departs from the technology-neutral framework for online privacy administered by the Federal Trade Commission,” the White House said in a March 28 statement signaling the president’s intent to sign the repeal. “This results in rules that apply very different regulatory regimes based on the identity of the online actor.”

Wouldn’t this state law, and others, be subject to federal pre-emption?

Probably not, said Ernesto Falcon, legislative counsel for the Electronic Frontier Foundation.

“It’s worth remembering the Communications Act actually has a lot of state and federal divisions of responsibilities,” Falcon said Monday. “And the FCC itself, when it passed the original rule, within the order it actually contemplated that the states could go beyond what the FCC rules were.”

Falcon said he is certain AB 375 will be challenged in court if the bill ever is signed into law.

“But the burden is on the challenger to prove that there is some sort of pre-emption when there’s nothing in the federal statute, and the tradition of communications law has allowed this type of state and federal division of responsibilities,” he said.

Is there any early opposition to the measure?

Not yet. But that’s likely to come. ISPs hailed the federal repeal of “the regulatory overreach of the prior FCC” and blamed the ensuing public criticism on “misinformation and inaccurate statements.” Companies in the technology and telecommunications sector have typically balked at any mandated “opt-in” consumer legislation.

What’s happening in other states on internet privacy?

A lot. Twenty other states this year are considering—or have already considered—some sort of response to the federal action, according to the National Conference of State Legislatures. Minnesota was one of the first states to introduce legislation reviving ISP consumer-privacy rules at the state level. But despite earning bipartisan support in both houses of that legislature, the privacy provisions were unexpectedly stripped during budget negotiations last month. Democrats accused Republican leaders of removing the language under pressure from ISP companies.

Will California lawmakers pass AB 375?

Chances are not great. The likely foes of the bill have an army of lobbyists in the capitol ready to attack the measure. AT&T alone spent more than $2.71 million on advocacy work in California last year, according to records filed with the secretary of state’s office.

“We know this will be a battle because all the broadband companies and businesses will do everything they can to defeat” the bill, Holober said.

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