New rules in place regarding data privacy, facial recognition technology

  • Wednesday, April 24, 2019 11:34am
  • Opinion

One of the most intriguing dramas at this point in the legislative session revolves around a bill putting new rules in place regarding data privacy and facial recognition technology.

And the intrigue deepened Wednesday when state Senate Bill 5376 failed to receive a vote in the House by a 5 p.m. deadline for action on non-budget policy bills.

“It’s dead. It’s really tragic after about a year of work on this,” said Sen. Guy Palumbo, D-Maltby, a co-sponsor. “We would have been leaders if we had adopted this. This is a classic case of the perfect being the enemy of the good.”

Maybe it’s not dead dead. Powerful voices in the Legislature and influential forces outside Olympia want it and that can often be enough to keep it alive until lawmakers adjourn.

“We didn’t find agreement. It didn’t come up for a vote. It seems dead,” said Rep. Zack Hudgins, cq JCD-Tukwila, who was among many in the House Democratic Caucus unimpressed by what the Senate sent them.

The bill sponsored by Sen. Reuven Carlyle, cq JCD-Seattle, attempted to set clear ground rules for the collection, sorting, using, and selling of personal information. In its original form, the 25-page bill also contained regulations for use of facial recognition software by law enforcement and other public agencies.

Carlyle pieced together elements of data privacy laws from Europe and California into something he hoped would protect the interests of Washington residents without hamstringing corporations’ ability to use the information.

The bill sailed through the Senate on a 46-1 vote in early March — then hit a wall in the House it could not scale. Many Democrats and Republicans didn’t feel the protections for residents were strong enough and worried businesses could break rules without facing serious punishment. And facial recognition was a nonstarter for many in the House Democratic Caucus..

But SB 5376 survived an April 9 deadline for action in the House budget committee because Democratic leaders did something unusual. They stripped out all of its content and replaced it with a long opening paragraph espousing a whole bunch of good intentions on how the state really wants to make sure corporations don’t abuse the private information of consumers they collect.

At that point, Democratic leaders sought help from a few select forces in the high-tech world who knew how data gathering and facial recognition software worked and how to keep misuse in check. They’re also the ones that need consumer information for their bottom lines.

They sat them down with a hand-picked crew of lawmakers to work on language that might pass in both chambers.

The move quickly blew up into a political poop storm as word got out about who was invited to the closed-door negotiations and who wasn’t.

Microsoft, Amazon, Comcast and the Association of Washington Businesses had seats at the table with the seven legislators — four House Democrats, two Senate Democrats (including the bill’s sponsor) and one House Republican.

No Senate Republican received an invite. Neither did any representatives of the consumer, technology, civil rights, law enforcement or legal organizations which had opposed the bill passed by the Senate and much of a reworked version in the House technology committee.

To critics, this looked pretty much like the regulated writing the regulations.

Shankar Narayan, cq JCtechnology and liberty project director for the ACLU, issued a blunt statement April 10 when the confab held its first meeting.

“With this move, tech corporations have made it clear that they will seize the opportunity to regulate their own business as loosely as possible, by willfully neglecting to include impacted communities in the discussion,” he said. “The Legislature should halt this broken process and come back in the interim to have a real stakeholder conversation.”

The chosen ones met five times in three days, with the last session occurring April 12. They stopped meeting no doubt in part because one participant, Hudgins,cq JC kept informing dozens of interested people about the progress, even sending out copies of language under discussion. Carlyle wasn’t amused.

Conversations happened in smaller groups ahead of Wednesday’s critical deadline.

On Monday, the legislative director for Gov. Jay Inslee wrote a rough draft of language based on what he heard while facilitating those earlier meetings.

On Tuesday, Hudgins put out a version that could be the one voted on in the House.

But nothing ever reached the floor. With less than two weeks to go in the session, there’s time for twists in this drama.

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