Giving Up on Congress, Privacy Advocates Shift Fight to the States

State lawmakers announced bills to limit police surveillance and protect the privacy of students and employees.

State Rep. Andy Josephson, left, listens as Joshua Decker, executive director of the American Civil Liberties Union of Alaska, speaks about two bills on data privacy at a news conference in in Juneau, Alaska, on Wednesday. The bills are aimed at protecting students and employees from having to provide access to personal social-media accounts under coercion or threat. (AP Photo/Rashah McChesney)

Frustrated by congressional gridlock, legislators in 16 states and the District of Columbia unveiled an array of bills Wednesday aimed at bolstering privacy protections.

Anthony Romero, the executive director of the American Civil Liberties Union, which coordinated the rollout of the bills, argued that state action is necessary because Congress has been “asleep at the switch” on privacy issues. “This movement is about seizing control over our lives. Everyone should be empowered to decide who has access to their personal information,” he said in a statement.

The bills, introduced by Republicans and Democrats in states from Alaska to North Carolina, would limit police surveillance, grant students broader privacy rights, and ensure that employees cannot be forced to provide access to their social-media accounts.

Many of the bills have counterparts on the federal level that have gone nowhere. “Our federal government didn’t take the lead and should have taken the lead,” said Michigan state Rep. Peter Lucido, a Republican who sponsored one of the bills. “But now it left us all to go ahead and fend for ourselves at the state level.”

If enacted, the bills would mark a major shift in policy-making to the states on privacy issues. While California and a few other states have enacted tough privacy laws in recent years, most significant policies have been set on a national level.

Sen. Ed Markey, a Massachusetts Democrat and longtime advocate of consumer privacy protections, applauded the state lawmakers and said he expects “this increasing momentum for protecting Americans’ privacy rights to encourage action by Congress.”

On a conference call with reporters, the ACLU's Romero expressed particular exasperation that Congress has failed to update the Electronic Communications Privacy Act of 1986 to require police to obtain a warrant to read emails and other electronic messages. More than 300 House members have signed on as cosponsors to such a bill, but it has yet to make it out of the Judiciary committees in either chamber.

“As Congress is ground into a gridlock and we still have not reformed any of the federal privacy laws, it’s salient that the states have stepped up to the plate and are addressing the privacy needs of their own residents,” Romero said.

An aide to House Judiciary Committee Chairman Bob Goodlatte insisted that lawmakers are still trying to reach an agreement on updating ECPA. At a hearing last month, Goodlatte worried that the current version of legislation to revise the 1986 law could hamper both civil and criminal investigations.

While many bills to limit police surveillance have failed to pass Congress, there has been even less movement on proposals to restrict how companies like Google and Facebook can handle private data. The White House even announced its own “Consumer Privacy Bill of Rights Act” nearly a year ago, but Congress has shown no interest in the issue, with many lawmakers worried about harming growth in the tech industry.

Congress, however, hasn’t been entirely complacent on all privacy issues. In the wake of the leaks by Edward Snowden, lawmakers enacted historic legislation last year to curb the domestic-surveillance powers of the National Security Agency. But that bill passed only because provisions of the Patriot Act were about to expire and Congress was forced to grapple with the issue.