Within the week, we will know whether Florida will adopt the most aggressive privacy law in the country, something more moderate, or nothing at all. But an issue that has not received enough attention is the reason HB 969 and SB 1734 have received more support in a “red” state than any other privacy law. It is a reason that will come full circle to adversely impact the contingency of supporters using privacy laws as a way to attack “Big Tech.”
The political “math” on a privacy bill is fairly straightforward – you start with most or all Democratic support, especially if the bill contains a private right of action. But how do you garner the support of conservatives who want to protect businesses from compliance costs and the onslaught of expected lawsuits? Answer – make the bill about “liberal Big Tech.” We saw this technique played out here in Florida when the House Speaker and Governor held a press conference to support HB 969 as a way to “check the growing power and influence of big tech.”
To be sure, some of the conservative support has been motivated solely by a genuine desire to give individuals more control over their data. But that’s not new. What’s new is a desire to retaliate against certain specific companies that are perceived to have a liberal bias or agenda. (I am not judging whether such an agenda or bias exists, I’m simply pointing out that the argument is being made.)
A privacy law that would unleash the hounds of hundreds of Florida-based plaintiffs’ lawyers intent on pursuing millions or billions of dollars in damages from the deep pockets of large technology companies seems like an appealing way to exact the desired revenge. But that is where I believe the anti-Big Tech contingency may not be seeing the long game.
Let’s say Florida adopts the most aggressive privacy law in the country. What happens next? In the short term, you’ll see the desired lawsuits against the perceived liberal big tech companies (although you’ll see far more against smaller Florida businesses that are not in the tech industry). But what about the long term? We are all moving into political “camps” when it comes to television, media, and journalism. The same is true of social media. We are seeing conservative social media applications, like Parler, coming about in response to a perceived political bias in the existing establishment. There will be more apps like those. Is it really a stretch, for example, to see the former President become the standard-bearer for a conservative social media application at some point in the near future?
And that’s where the consequences of these privacy laws will become particularly interesting because I would guess that the social media and big tech giants of today are going to be far better equipped to defend themselves against the coming legal attacks. Those companies have spent billions of dollars developing sophisticated technology and code that better deidentifies information, provides faster and more accurate processing of consumer requests to delete/amend their personal information, and implements overall stronger safeguards that will minimize the risk of falling out of compliance with an aggressive Florida privacy law.
Is the same true of newer, more “conservative-based” social media applications? Will they have those same levels of privacy and security protections? Will they be less likely to slip up and violate Florida’s privacy law? Will they have as deep pockets to fight and defend these lawsuits? My gut tells me, based only on the fact that they’re newer and lacking the same R&D investments, that they won’t, at least not initially.
The plaintiffs’ bar will be just as content (if not happier, given its policital composition) to bring class-action lawsuits against the companies perceived to have a more conservative bias.
In short, I anticipate we’ll see those on the right who support privacy laws as a tool against big tech get hoisted on their own petard. I don’t get the sense that these longer-term consequences have been fully considered by all of the interest groups involved in the conversations in Tallahassee thus far. It all comes down to the old adage – “what’s good for the goose is good for the gander.”
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