Tag: hit&run

Giving individual immigration officials more discretion over what counts as “good moral character” will only complicate an already flawed system for determining who is worthy of becoming a U.S. citizen. Yet that’s exactly what U.S. Citizenship and Immigration Services (USCIS) is encouraging in its updated guidance on naturalization.

In a December 10 policy alert, USCIS emphasized that officers should “determine whether an ‘unlawful act’ is a conditional bar [to good moral character] on a case-by-case basis.”

As part of the naturalization process, all potential citizens are required to prove “good moral character.” One of the things that can keep an applicant from meeting this requirement is being accused—not convicted, not charged, merely accused—of unlawful acts.

The agency’s examples of unlawful acts include making a false claim to U.S. citizenship, failure to pay taxes, sexual assault, bank fraud, bail jumping, unlawfully registering to vote, and several other things.

But while an “unlawful act” is a sufficient condition for USCIS saying someone lacks good moral character, it is not a necessary one. The Immigration and Nationality Act “also allows a finding that ‘for other reasons’ a person lacks good moral character, even if none of the specific statutory bars applies,” explains the USCIS policy manual.

Examples of “other reasons” why someone may be judged to lack good moral character include having two or more convictions for driving under the influence, failing to pay sufficient child support, and committing adultery.

All of these things fall under what USCIS calls “conditional bars” to establishing good moral character and becoming a U.S. citizen. Other conditional bars include:

• engaging in or even attempting to engage in prostitution;
• violating any federal, state, or local law against controlled substances or drug paraphernalia (with the exception of one single offense of marijuana possession of 30 grams or less);
• incarceration for 180 days or more for any reason “except political offense”;
• making a living from illegal gambling;
• practicing polygamy; and
• being a “habitual drunkard.”

Leaving aside for now whether certain criminal offenses (such as drug possession or prostitution) should be grounds for deportation and denied citizenship, determining such things based on criminal convictions would at least provide a steady and easy-to-comprehend standard. But as it stands, individual immigration officials can decide that one applicant can stay even with a conviction, while another applicant may be barred based on a mere accusation of criminality, and another applicant could get the boot with no allegations of criminal activity at all.

This not only violates a basic sense of fairness, but also leaves a lot of room for corruption and extortion by USCIS agents and even more room for them to impose their own personal visions of morality. Already, asking immigration authorities to set different levels of moral culpability for different activities has resulted in some questionable determinations.

For instance, when it comes to prostitution, people who solicit sex (i.e., the customers) may be given more lenience than sex workers are.

The Board of Immigration Appeals has “determined that a single act of soliciting prostitution on one’s own behalf is not the same as procurement,” notes USCIS. However, engaging in prostitution, procurement of prostitution, or receiving proceeds from prostitution mean that “an applicant may not establish [good moral character].”

For instance, having an extramarital affair is offered as an absolute no when it comes to establishing good moral character while beating one’s spouse or children is not.

“An applicant who has an extramarital affair during the statutory period that tended to destroy an existing marriage is precluded from establishing [good moral character],” states USCIS with no caveats.

However, “offenses such as spousal or child abuse” only “may rise to the level” required to block naturalization and “an offense involving a domestic simple assault generally does not,” states USCIS. (Emphasis mine.)

In addition, “an offense relating to indecent exposure or abandonment of a minor child may or may not” and having “intentional sexual contact with a child” will only “in general” mean a finding of bad morals. (Emphasis mine.)

Better immigration policy would set hard rules for statutes that can’t be broken if you want to become a citizen (preferably keeping victimless crimes and small infractions out of it) while leaving the vague, subjective “moral character” clauses behind.

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On Monday, the Supreme Court declined to take on a case about how the city of Boise, Idaho, treats its homeless citizens, leaving in place a ruling that says it’s unconstitutional to punish people for sleeping outdoors if the city lacks alternatives.

The justices turned away Martin v. Boise, a case where a Ninth Circuit Court of Appeals panel ruled that Boise’s practice of citing homeless people for camping outdoors violated the Eighth Amendment’s prohibition on cruel and unusual punishments since these people did not have alternative shelter options.

This doesn’t mean that people can just choose to sleep on sidewalks and in parks if they want to, but rather that a city cannot punish homeless people for camping in public space if the city has not provided enough shelter for them. It’s a ruling about shelters and housing, not an acknowledgment of some sort of right to live on public land.

The city of Boise has since changed its ordinances to state that they won’t be enforced against homeless people when shelters are full. But the Supreme Court’s refusal to take the case leaves big cities with large homeless populations along the West Coast (where the Ninth Circuit rules) with a clear message that they can’t use the law to try to run their homeless population out of town—the only way out is to build.

That’s a problem in places like Los Angeles and San Francisco, where overly meddlesome regulations and demands from the state and the cities make it very, very hard (if not impossible) for private developers to build any housing at all, let alone affordable housing for the poor. Expensive labor requirements drive up costs, and unions threaten environmental lawsuits against developers who don’t contract with them. There’s also the issue of homeowners who will lobby their local council members and city planners to block new housing or businesses (or turn to California’s overly broad environmental law to sue them, if lobbying fails).

It’s particularly telling that the Los Angeles Times describes this outcome as a “setback” for city officials in Los Angeles and elsewhere for getting rid of homeless encampments. Even though the city has committed more than $1 billion to build housing for its massive homeless population, resistance from within neighborhoods themselves have made it nearly impossible, and even where it is possible, regulatory and bureaucratic hurdles have made it absurdly expensive, approaching $700,000 a unit.

Reason TV’s Zach Weissmueller recently covered L.A.’s inability to house its homeless population:

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Imagine a building where drug-sniffing dogs roam the corridors, air-quality sensors alert officials if anyone is inhaling a controlled substance, using the bathroom is a privilege rather than a right, clothing is searched in case anyone is hiding contraband up their sleeves, and those who are caught breaking the rules could face life-derailing punishments.

You might be imagining a prison. In fact, I have just described a public school in Texas, where the authorities are so obsessed with stopping teenagers from vaping that they are perfectly willing to treat them like inmates.

That’s the only conclusion one can reach from this eye-opening Texas Tribune article, which details the state’s draconian efforts to crack down on the vaping scourge. This year, Texas raised the vaping age from 18 to 21, and schools are pulling out all the stops—including installing “vape-detecting” sensors in the hallways—to prevent underage usage. The Tribune reports:

Vaping nicotine alone is prohibited for students under age 21, and an increasing number are being suspended or removed from regular classes and sent to alternative schools designed for students with disciplinary problems.

A smaller—but rapidly growing—number of students are being expelled when suspected of vaping THC, the mind-altering ingredient in marijuana and a felony-level controlled substance under state law. THC oils or waxes used in vape pens are almost always more potent than the marijuana plant. Police are called and students arrested in cases where officials simply suspect a vape pen contains illegal drugs.

As vaping continues to outpace traditional smoking among the nation’s youth, students who a few years ago may have been charged with at most a misdemeanor for smoking a joint are now facing felony charges for having a vape pen in their backpacks.

The article highlights a few concrete examples. Student Thomas Williams-Platt, age 17, brought a vape pen into school that he had purchased from another student. Police conducted an on-site drug test that determined it contained THC. He was arrested, handcuffed, and booked into jail, where he spent hours in a cell “listening to the screams of other arrestees suffering from drug withdrawal.” Texas law considers 17-year-olds to be adults for sentencing purposes, which meant that Williams-Platt could face felony charges.

That 17-year-olds in Texas are considered insufficiently mature to vape, but plenty old enough to go to prison, is an absurd and unconscionable hypocrisy. It’s also the law.

When students are caught vaping, they are often immediately expelled and shipped off to alternative schools for serious wrongdoers. These are even worse environments for young people, described by Williams-Platt as a kind of “super strict kindergarten” where students learn very little, except perhaps to follow capricious and arbitrary rules. The number of Texas kids sentenced to these schools has increased 6o percent since last year, and officials say the war on vaping is largely to blame.

To the extent that vaping is harmful, most of the danger comes from consuming illicit, black market vaping products—the very sort of vaping that becomes more common as the industry is driven underground by overzealous legislators. But let’s say the health concerns were well-founded. What’s worse for the average teenager: vaping, or going to prison? There should be no doubt that the solution to this supposed problem—pulling kids out of good schools to send them to bad schools, treating them like inmates, and charging them with felonies—is significantly more harmful.

The war on vaping is a moral panic with terrible consequences for the very people it is supposedly designed to protect. Sadly, it is likely to get much worse. Various Republican and Democratic senators have proposed a federal measure to ban all tobacco products—including e-cigarettes—for everyone under the age of 21.

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One of the many strengths of HBO’s Watchmen, a sequel and “remix” of Alan Moore’s seminal 1986 graphic novel that finished an extraordinary first season Sunday night, was its ability to engage with a multiplicity of themes: This was a show about racism, police abuse, 20th century American history and politics, celebrity, inequality, vigilantism, superheroes, the nature of god, and, in the end, the enduring and transcendent power of love. The show is notable for the sheer density of ideas it managed to pack into nine hourlong episodes; it wasn’t quite a show about everything, but it sure was a show about a lot. Considering the well-deserved esteem in which Moore’s original story is held, it’s hard to think of any other recent pop culture high-wire act quite so conceptually ambitious—or successful. 

Yet if there was a single thread connecting the show’s many themes and questions, it was that those who seek power will inevitably do so badly—even when they have the best intentions. This idea was stated explicitly in the finale, when Adrian Veidt (Jeremy Irons) declared that “anyone who seeks to attain the power of a god must be prevented at all costs from obtaining it.”

Veidt, of course, was speaking from a position of firsthand knowledge, as a supergenius who in Moore’s comic arranged a fake interdimensional attack by a giant squid thing, killing three million in the process in order to bring the world together and stave off a nuclear apocalypse. 

Moore’s comic, which took place in an alternate-present America in which the U.S. had won the Vietnam War with the help of Doctor Manhattan, was highly engaged with the Cold War politics of the 1980s. But the political elements were secondary; they existed first and foremost to serve Moore’s fatalistic deconstruction of the superhero genre. The story was structured as a kind of argument that superheroes, if they actually existed, would inevitably lose touch with humanity, and as a result would become either cold and distant (Doctor Manhattan) or flat-out monstrous (Veidt). The quest for power, even in the guise of good, would turn supposed heroes into villains. It was a radical upending of the superhero genre and the comic book form: Comic books, with their simple stories of good and evil, were selling a lie. 

In HBO’s Watchmen, by contrast, the relationship is reversed: Showrunner Damon Lindelof uses the trappings of superhero stories to deconstruct America’s fraught racial history and current racial politics. 

Once again, he has constructed an alternate present, this time in Tulsa, Oklahoma, the site of a horrific 1921 massacre in which white mobs murdered untold numbers of black residents, an event searingly dramatized in the show’s opening sequence. That event provides a foundation for the show’s altered timeline, one in which city police wear masks and take on superhero guises after being targeted by The Seventh Kavalry, a group of white nationalists who idolize Rorschach, a character from Moore’s graphic novel. Richard Nixon is no longer president, but Robert Redford is, and his liberal policies—reparations, gun control, limits on police use of force—are despised by many, and shown in some cases to be ineffective.

Further complicating the situation is the presence of Lady Trieu, another Veidt-like supergenius with a vast fortune to deploy. And, of course, Doctor Manhattan, last seen on Mars, is still lurking out there somewhere—or perhaps hidden in plain sight.

To say much more would be to spoil the series’ many well-executed surprises, and to risk simplifying what is ultimately a complex message about the moral imperative to do good and the dangers of concentrated power. It’s a show that simultaneously suggests that individuals have a duty to do more, to be better humans, to live more fully up to classically liberal ideals, and also that the pursuit of those ideals on a grander, less distinctively personal scale can, like superpowers, turn someone into a cold and distant monster. 

Moore has famously never given his blessing to any adaptation of Watchmen, and he generally takes a dim view of superhero-dominated pop culture. In a recently unearthed interview, he linked today’s superhero movies to Birth of a Nation, saying “these books and these iconic characters are still very much white supremacist dreams of the master race.” Yet Lindelof and his team of writers channeled both the spirit of Moore’s original work and these more recent comments. This is an adaptation and sequel that lives up to its source material, and its creator.  

Like Moore’s graphic novel, Lindelof’s story is structured as a kind of argument about cultural and political power—its limits and its abuses. And like its source material, it resists becoming a simple morality tale. The difference is that, in this case, it’s not comic book notions of good and evil that are the target, but simple notions of societal justice. No one, not even a superpowered person with the abilities of a god, can solve every problem, the show seems to say—nor should we want anyone to try. But all of us can, and should, do a little bit, maybe a lot, more to try to change ourselves.

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On Wednesday morning, Twitter co-founder and CEO Jack Dorsey surprised many people by tweeting out an ambitious plan to hire an independent team, called “Bluesky,” to explore re-architecting Twitter as an open, standards-based “protocol” rather than its current state as a “platform.” As part of that tweetstorm, Dorsey cited a paper I wrote earlier this year, published by the Knight First Amendment Institute at Columbia University, entitled “Protocols, Not Platforms: A Technological Approach to Free Speech.”

Assuming you don’t feel like reading that 7,000-word long academic piece on what this all could mean, I will make the simplified case here for why this could be a very big deal, while also noting that there’s an even greater probability that it will mean very little.

Let’s start with a simple analogy. Compare email, an open standardized set of protocols including SMTP and IMAP, with Facebook Messenger, a proprietary, centralized messaging tool created, owned, and controlled entirely by a single company: Facebook.

With email, anyone could (with a bit of technical knowhow) set up their own email server. But since few people want to do that, there are plenty of places to get your own email address and client (the interface through which you receive and send emails). Your internet provider often will give you an account, or you get a Gmail account from Google like basically everyone has. Here’s the interesting bit, though: even though Google has a huge market share of the email business with Gmail, the fact that it’s based on open email protocols means that you don’t have to rely on Google for anything. You can bring your own email address into Gmail if you want. Or you can use Gmail using a third party client, like Mozilla’s Thunderbird.

And, perhaps even more important, it doesn’t matter which combination of these things you use because you can still communicate with anyone using any other email system. Don’t like what Google is doing with email or worried that the company might spy on you? No problem, export your emails and contacts and go use something else. Nothing breaks. You don’t lose access to anyone else. Indeed, Google actually has tremendous market-based incentives to “not be evil” in this scenario, since it’s so easy for you to go elsewhere.

Compare that to Facebook Messenger. If you want to communicate with someone on Facebook Messenger you need a Facebook account. And you need to use Facebook’s app. And you can only communicate with other people on Facebook using Facebook Messenger. If you don’t trust or like Facebook Messenger, you can certainly move to a different messaging app—but you lose your history, you lose your contacts and you can only communicate with others who use your new choice of apps. And, worse, if Facebook decides it doesn’t want you on Facebook any more, you’re entirely out of luck. Facebook is, literally, the monopoly provider of Facebook Messenger.

The email/protocol example is the way much of the internet used to be in the early days. The Facebook Messenger example is what much of the internet became during the web 2.0 timeframe. Old-school open protocols were seen as less user-friendly, and less sustainable without a big company backing them.

What Dorsey is proposing, however, is to take Twitter—a proprietary, closed system—and see if it’s possible to move it to the historical, more open protocols of the early internet. This would mean giving up centralized control, pushing more power and control out to the end users, and creating a more competitive market for a better version of Twitter. 

While it has resulted in plenty of eye-rolling, Dorsey’s nod to the possibility of cryptocurrency/blockchains is quite interesting here as well: “Blockchain points to a series of decentralized solutions for open and durable hosting, governance, and even monetization.” As he notes at the end, this offers up a potential business model that could keep a protocol sustainable (unlike in the past) without the need to resort to sucking up all your data and targeting ads.

It has the potential to, at the very least, shift the discussion on three of the biggest complaints concerning the big internet companies today: competition, privacy, and content moderation. By default, it enables more competition. Depending on how it’s structured, you can reduce the privacy questions by (1) reducing the need for data since you might not need targeted ads to support it; (2) handing the data control back to the ends or to more trusted third party data stores; and (3) incentivizing better behavior because of the ease of switching. And, it allows for better content moderation options by allowing there to be both competition at the moderation/filter level, but also in allowing end users to opt into their own level of moderation comfort, rather than leaving it all up to a single monolithic entity.

If this works, it would completely upend much of how the internet is looked at today, potentially limiting the internet’s biggest annoyances, while retaining its best features: the ability to freely connect and communicate with people around the globe. But that’s a very big “if” at the beginning of this paragraph. There is no history of taking a proprietary, closed platform and turning it into a broad, open protocol. However, Twitter is well-positioned to make it happen—perhaps better than almost anyone else. Other efforts to build a new social media protocol from scratch (and there are many) suffer from a failure to attract a large enough audience. Twitter brings scale.

There are many reasons why this could fail. But if it does succeed—and I believe it could—it would represent a big shift in how an internet service at scale can operate, and it would change much of the discussion we’ve been having over the past few years concerning the position and power of big internet sites.

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Today is Saturnalia, an ancient Roman holiday with a long tradition here at the Volokh Conspiracy, which we are now continuing at our new home with Reason. Admittedly, it’s  tradition only in so far as I have put up a post about it every December 17 for the last several years. But, by blogging standards, that’s a truly ancient tradition indeed!

The Encyclopedia Romana has a helpful description of Saturnalia:

During the holiday, restrictions were relaxed and the social order inverted. Gambling was allowed in public. Slaves were permitted to use dice and did not have to work. . . Within the family, a Lord of Misrule was chosen. Slaves were treated as equals, allowed to wear their masters’ clothing, and be waited on at meal time in remembrance of an earlier golden age thought to have been ushered in by the god. In the Saturnalia, Lucian relates that “During My week the serious is barred; no business allowed. Drinking, noise and games and dice, appointing of kings and feasting of slaves, singing naked, clapping of frenzied hands, an occasional ducking of corked faces in icy water—such are the functions over which I preside.”

This year, to put it mildly, we have no shortage of strong applicants for the position of Lord of Misrule. The incumbent president and many other politicians of both parties are formidable candidates, indeed. The 2020 election has certainly brought many of them out of the woodwork.

Happy Saturnalia to all the friends, Romans, and Volokh Conspiracy readers out there!

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In my recent post discussing when we might see an opinion from the U.S. Court of Appeals for the Fifth Circuit in Texas v. U.S., I wrote that I was “not aware of any instance in which judges manipulated the timing of an opinion” in order to effect how much coverage or attention the opinion receives. VC readers are apparently more aware of such things than I am.

In 2010, the NYT‘s Adam Liptak wrote about the timing of the Supreme Court’s decision in Bowers v. Hardwick:

If justices are to engage in what their colleagues may view as a breach of collegiality and decorum, they want it to count.

Consider Bowers v. Hardwick, the 1986 decision that said there was nothing in the Constitution to stop states from making it a crime for gay men to have consensual sex at home. Justice Harry A. Blackmun had written a dissent, and he was thinking about summarizing it from the bench.

That sounded good to his law clerk, Pamela S. Karlan.

“The majority’s treatment is a disgrace,” she wrote in a memorandum to the justice that became public when his papers were released “and it’s well worth making clear to everyone what the case is really about.”

Ms. Karlan, now a law professor at Stanford, also had some public relations advice for her boss about the case, which was to be announced that Friday.

“I think Friday is a bad day to have the case brought down,” she wrote. “A summer Friday and Saturday are probably the least likely time for people to take notice of what the court has done. I would press, if I were you, for Monday instead.”

The announcement was indeed pushed back, and Justice Blackmun delivered a passionate dissent. It took 17 years, but the court came around to his view when it overruled Bowers in Lawrence v. Texas.

Speaking of Lawrence v. Texas, that decision (striking down a Texas’ law criminalizing same-sex sodomy), Windsor v. United States (striking down the federal Defense of Marriage Act), and Obergefell v. Hodges (requiring states to recognize same-sex marriage on equal terms with opposite-sex marriage), were all handed down on June 26. I doubt that was a coincidence.

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Vox Media is laying off hundreds of freelance writers and editors due to a new California law that was sold as a way to protect the state’s contingent workforce. That law, AB5, was adopted in September. To comply, New York-based Vox Media would have had to reclassify many of the freelancers it uses for sports platform SB Nation as full-time staff.

Instead, the company decided to cancel the contracts of some 200 or so freelancers that now work for SB Nation. It will “replace them with 20 new part-time and full-time staffers,” a “source familiar with the decision” told the Los Angeles Times.

AB5 “makes it impossible for us to continue with our current California team site structure because it restricts contractors from producing more than 35 written content ‘submissions’ per year,” explained SB Nation’s John Ness.

Vox Media’s flagship publication, Vox, previously called the California legislation “a victory for workers everywhere.“

A lot of folks are now describing freelancer firings as an “unintended consequence” of AB5. But this facet of the bill was well-known and discussed beforehand.

It’s not an “unintended consequence” so much as one that folks who wanted to stick it to Uber and Lyft (or at least get press for pretending to stick it to Uber and Lyft) deemed an acceptable consequence.

Mainstream politicians and pundits love to cite “unintended consequences” when their preferred policies cause harm in the exact ways libertarians said they would. It’s a brilliant way to get credit for trying to Do! Something! about a problem while absolving one’s side of any blame for the negative consequences of that action.

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QUICK HITS

• A measure to raise the legal smoking age to 21 across the entire country has been tucked into the massive spending bill before Congress. And that’s just the beginning…

Well of course they did. This is crazy. These tax breaks should be separate votes from the omnibus spending bill. https://t.co/ronkQXXDhX

— Thomas Massie (@RepThomasMassie) December 17, 2019

• Rudy Giuliani is saying the quiet parts out loud again.
• Only 63 percent of Americans in a new survey “said they would miss freedom of speech if that right was taken away.”

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Data privacy hardliners are pretty jazzed about the California Consumer Protection Act (CCPA), which is slated to take effect on the first of the next year. While many outside of the Golden State may not have heard of this bold foray into computing regulation, activists hope that it will soon effectively control how much of the country is allowed to process data. If they can’t have an European Union-level General Data Protection Regulation (GPPR), then at least this state law can kind of regulate through the back door without the pesky need to go through Congress.

Of course any strong enough data controls imposed in California would inevitably affect everyone else in the US. Most technology companies are based there, and even those in other states would be fools to lock themselves out of California’s population of almost 40 million.

And CCPA supporters know this. In fact, many of them see this as a feature.

The wealthy real estate mogul who bankrolled the campaign for a California data control law, Alastair Mactaggart, testified that “it is incredibly difficult to get any legislation through Congress,” and even if Congress could get its act together and pass a data law, it should “not preempt state legislation” like the CCPA. That’s easy to say if you drafted the state law that will rule over the rest of the country, but non-Californians who object to such controls will obviously feel differently.

Even California Attorney General Xavier Becerra, whose office will lead CPPA enforcement, frames his mandate in national terms, stating that “Americans should not have to give up their digital privacy to live and thrive in this digital age.” That’s Americans, not Californians. Hey guy, who died and made you data czar for the entire country?

But these efforts to push state regulation as a de facto federal standard for data privacy may be too clever by half. A gambit that attempts to set up a state law to trump a federal solution would yield immediate constitutional problems.

A new Federalist Society Regulatory Transparency Project paper by my colleague Jennifer Huddleston and TechFreedom’s Ian Adams suggests that state data controls like the CCPA raise serious legal questions about potential free speech and dormant commerce clause violations.

There’s this thing called “the Constitution…”

In the rush to get a GDPR-style regulatory framework in place in California, no one seemed to stop and ask whether what they were doing was actually legal. Indeed, many of the controls enshrined in the European law are fundamentally at odds with American principles of permissionless innovation and open interstate commerce. Huddleston and Adams point out that state laws like the CCPA may run into constitutional problems concerning speech and interstate trade.

Data is often speech. Laws that regulate speech are subject to a high level of legal scrutiny because of our First Amendment protections. States don’t get to ignore the First Amendment just because they really don’t like Facebook. If they try to regulate data-as-speech, the courts may promptly strike them down.

How might this look in terms of a state data law? One popular idea is to treat data usage differently depending on whether that data is “for sale” or not. Given the populist anger about data brokers and “monetizing our personal information,” it makes sense that this would make its way into a bill. But this could be a constitutional no-no, since the courts have ruled that distinguishing between a “sale” and simple data processing could be a content-based control on speech.

Then there’s interstate commerce. The whole point of the federal government is to fend off foreign baddies so that we can freely trade among each other in the states. State laws that discriminate against out-of-state actors or unfairly burden interstate trade obviously throw a monkey wrench into the operation, so an inferred constitutional doctrine called the “dormant commerce clause” puts a stop to states trying to regulate commerce beyond their borders. You know, like the CCPA precisely tries to do.

The internet is an inherently interstate, and indeed international, venture. Imposing rules that make it harder for out-of-state companies to transact with state consumers and businesses violates the dormant commerce clause and will likely be struck down. After all, the courts don’t allow states to require trucks to change their mudflaps when they cross between borders. If something as simple as tire protection protectionism is deemed unkosher under the dormant commerce clause, something as fundamental to the national economy as internet commerce will surely warrant similar legal protection.

Huddleston and Adams also point out that it’s not like the federal government does not have data privacy laws already. Legislation like the Graham-Leah-Bliley Act, the Health Insurance Portability and Accountability Act (HIPAA), and the Children’s Online Privacy Protection Act (COPPA) already govern data practices relating to financial, health, and children’s data. Where broad state laws come into conflict with existing specific federal data law they may be trumped by the federal law rendering them less comprehensive than they initially seemed.

You get the picture. Far from being a slam dunk for bringing GDPR-style privacy controls to the US, state laws like the CCPA may actually fail to pass constitutional muster. And it’s probably all for the better, given the considerable appetite for such laws among the states.

Do we really need a more fragmented internet?

California may get all the attention, but it’s far from the only state eager to wrest control over data usage. Maine and Nevada have already passed data regulation bills, and Massachusetts and New York are considering their own. Twenty-five states, ranging from Washington to Mississippi, considered data privacy legislation last legislative session. Other state leaders may soon follow, hoping to politically cash in amidst the year of the techlash.

It would be bad enough if California was one of the only states to roll out data controls, or if its data controls were the strongest in the nation, which would effectively become a national standard.

But consider a world where each of the 50 states has their own onerous and contradictory data control policies. Companies would need to build out different services depending on where a user is located. If the costs exceeded the benefits of complying with, say, tiny Rhode Island’s hypothetical opt-in data framework, perhaps the Ocean State would just get cut off completely. Only the deep pocketed Googles and Facebooks of the world would be able to operate in such a costly regulatory environment. You can kiss the days of an upstart David toppling the Goliaths from a dingy garage goodbye.

We’ve already seen this happen with the GDPR. The companies whose controversial data policies spurred the regulations in the first place found their market positions consolidated following the law’s implementation. Many websites still appear dark for EU internet users. Meanwhile, it’s hard to argue that anyone’s “privacy” has been meaningfully enhanced.

We don’t need to reproduce this digital balkanization in the States. If Huddleston and Adams are right, the inevitable court cases challenging the constitutionality of state data controls may soon enough prevent this. In the meantime, we can expect consumers and companies to suffer as they deal with the stifling effects of multiple contradictory data control jurisdictions.

 

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