Written by Jake Romero
The California ballot measure process permits any California voter to propose a ballot initiative to the state’s Attorney General which, if enough signatures are gathered, will then appear on state-wide ballot for approval at the next election.
A draft ballot initiative has been submitted to the California Attorney General that, if added to the ballot and approved by voters, would have a tremendous impact on the way in which business is conducted with respect to data associated with consumers. Referred to as the California Personal Privacy Initiative, the proposed ballot measure would add a new article to California’s Constitution titled “Right to Privacy in Personally Identifying Information.” The new article would make all personally identifiable information of consumers automatically confidential, and includes a presumption that a person has been harmed if his or her information has been disclosed without his or her authorization.
If there is cause for alarm, it is that the California Personal Privacy Initiative is being proposed as a ballot initiative. Californians love ballot measures the same way that film director Michael Bay loves explosions; there can never be too many, and they can solve any problem. If passed by California’s voters, the proposed article would become effective on January 1, 2016 without debate or amendment by the legislature, meaning that businesses will be forced to either change their data sharing practices, or obtain the consent of all of their current users. In either case, the cost of doing business could potentially increase materially in the short run.
The proposed article defines “personally identifiable information” broadly to include “any information which can be used to distinguish or trace a natural person’s identity” either on its own or when combined with other information (excluding publicly available information that is lawfully made available to the public through governmental records). While the proposed article does include an exception, it is narrow; requiring a countervailing compelling interest where no reasonable alternative is available.
In other words, if passed, the ballot initiative would create an opt-in requirement for California consumer information sharing that is beyond the requirements of any other state. By default, businesses and governmental entities would be required to first obtain consent prior to sharing personally identifiable information with any other party, including routine service providers.