Editors' Note: This is the third in our third annual end-of-year series examining important trends in data privacy and cybersecurity during the coming year. Our previous entries were on comparing the GDPR with COPPA and on energy and security. Up next: trends in federal data privacy enforcement.
Whether it was a Blue Wave or a "Big Victory," the midterm elections unequivocally transformed state regulatory and enforcement landscapes by sweeping in four new Democratic Attorneys General and earning Democrats a majority of those key policymaking positions. The Democrats flipped four offices with Aaron Ford (NV), Phil Weiser (CO), Dana Nessel (MI) and Josh Kaul (WI) each claiming victory over GOP opponents. Ford and Kaul each unseated GOP incumbents. While these new AGs will face a host of common issues in their home states – the opioid epidemic, criminal justice reform, and LGBTQ+ discrimination, to name a few – their greatest opportunity to effect meaningful reform may present itself at the national level.
In recent years, state AGs have become the primary line of defense in the cybersecurity universe, filling the void left by the federal government's reluctance to introduce comprehensive data privacy reforms and to aggressively combat cybercrimes. Indeed, a recent GAO report trumpeted the need for urgent action at the federal level to address the multiplying cybersecurity threats facing the nation. That report identified 4 major cybersecurity "challenges" and 10 critical actions that the federal government and other entities should take in response. The challenges included: 1) establishing a comprehensive cybersecurity strategy and performing effective oversight; 2) securing federal systems and information; 3) protecting cyber critical infrastructure; and 4) protecting privacy and sensitive data. It would be a surprise to many if the feds suddenly stirred from their slumber to address the laundry list of vulnerabilities identified by the GAO. It is far more likely that the daunting task of protecting consumers from cyber threats will remain squarely on the shoulders of state AGs.
Post-election, the Democratic AGs may feel increasingly emboldened to homogenize the existing patchwork of state cybersecurity regulations. Now holding a majority – 27 – of state AG posts, the Democrats certainly have the strength in numbers to inspire broad reform across the nation.
Are the newbies up to the challenge?
Of the four, Aaron Ford brandishes the most impressive cybersecurity CV. Ford showed his mettle while serving in the Nevada legislature by co-sponsoring a progressive cybersecurity bill, which was signed into law this past June. The law's enactment made Nevada only the third state in the nation to require website operators to inform consumers about data collection and use practices. The law requires "operators" – defined to include entities that operate a website, collect or maintain personally identifiable information from Nevada residents, or conduct activities within the state – to: 1) identify the categories of personally identifiable information being collected from consumers; 2) describe the process for consumers to review and request changes to any information collected; 3) identify the categories of third parties with whom the operator may share such personally identifiable information; and 4) disclose whether a third party may collect personally identifiable information about the consumer's online activities over time and across different internet websites. Coming full circle, Ford will now be charged with enforcing the law he pushed through the Nevada legislature. The Nevada Attorney General's Office is authorized to initiate legal proceedings if it has reason to believe that an operator is violating the above-enumerated disclosure requirements.
Ford's overarching purpose in sponsoring the bill was to ensure that "Nevada's privacy laws reflect that we are all conducting more of our lives online." But the law was also a direct rebuke of federal government's scale-back of Obama-era FCC privacy rules. Then-Senator Ford called out Congress and the President in characterizing the unraveling of FCC internet privacy protections as a grave mistake. According to Ford, continuation of the FCC internet privacy scheme "would have been a big leap forward to help us in this digital age, but they rolled it back." Although proud of the Nevada cybersecurity law, Ford lamented that it was only an incremental step and called for Congress to do more: "We're hoping that Congress is going to make a move to reconsider some of these rules that they have not done, but in the meantime, at a minimum, we can require the disclosure component."
Although he may not have the same meaty credentials as Ford, Phil Weiser's rhetoric at least suggests acute awareness of the issues and acknowledgment that the federal government is asleep at the wheel. Weiser put Washington in the crosshairs while campaigning for Colorado Attorney General in declaring that "[w]e must be prepared to protect our consumers when the federal government is turning its back on consumer protection, privacy, and antitrust enforcement. We need a state Attorney General who can fight for us and act as a national leader on these issue." Perhaps foreshadowing collective-AG action in the data privacy realm, Weiser has condemned the Trump administration's evisceration of the Consumer Financial Protection Board and highlighted the need to "act together with other states to protect Coloradans from forces that exploit the vulnerable every day." With experience in the DOJ, academia, and the Obama White House, Weiser may be key figure in bringing together Democratic AGs to spur national advancement in cybersecurity and consumer internet protection.
In contrast, Dana Nessel and Josh Kaul have, at least in their proclamations of priority initiatives, been relatively silent on cybersecurity. Nessel, a former prosecutor in Wayne Co., Michigan and criminal defense attorney, has earmarked consumer protection as a critical initiative for her office. But, the breadth of Nessel's consumer protection focus does not, at least to this point, include attention to cyber threats and data privacy issues. Rather, Nessel has vowed to protect Michigan's seniors from fraud and abuse. Nessel has expressed desire to "do more to make certain that this epidemic of abuse and neglect and economic exploitation of seniors [is brought] to an end and that somebody is there to advocate on behalf of the elderly in this state."
Similarly, Josh Kaul, who traced his mother's footsteps in ascending to the position of Wisconsin Attorney General, campaigned on a consumer protection platform which made little mention of the grave cybersecurity issues facing his state and the nation. Promisingly, though, like his first-term counterparts, Kaul has also signaled the need for state collaboration to better protect the nation's consumers: "The federal government has rolled back some important consumer protections. Some states have stood up to take action, but Wisconsin has not." Under Kaul's leadership, it would not be surprising to see Wisconsin band together with other states on data privacy issues.
If Attorney General-elects Nessel and Kaul may lag somewhat behind their Nevada and Colorado peers in cybersecurity dexterity, they will need to get up to speed quickly. Cyber threats already outpace existing regulatory and enforcement schemes, and consumers need sophisticated regulators at the helm. As the GAO report made abundantly clear, cybersecurity issues continue to proliferate as the emergence of new technologies can potentially introduce security vulnerabilities in those technologies which were previously unknown. Until Washington decides to act, consumers will need state Attorneys General to remain steadfast in combating cyber threats and protecting personal data. As these four new AGs take office, we will monitor for any important cybersecurity initiatives and keep you informed.
To view Foley Hoag's Security, Privacy and The Law Blog please click here
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
