NJ looks to become next front in debate over data privacy

TRENTON — State lawmakers are drafting and refining bills that could make New Jersey the next front in the nationwide debate over data privacy.

California has a well-known data privacy law, Virginia enacted its own version last month, and there is renewed hope Congress may set a new national standard. Ashkan Soltani, former chief technologist for the Federal Trade Commission, supports states trying new frameworks – if they’re effective.

But at a recent Assembly Science, Innovation and Technology Committee hearing, he said the New Jersey proposals wouldn’t be.

“Of the three bills that I reviewed, I identified multiple loopholes which effectively would render them useless,” Soltani said.

Cornell Tech information science professor Helen Nissenbaum, director of the Digital Life Initiative, came to the same conclusion. She said New Jersey can be an innovator if it is wise to how the industry works around restrictions but that bills built around seeking accurate, precise disclosures are doomed.

“None of these bills are going to work,” Nissenbaum said.

Advocates for better data privacy such as assistant professor Jonathan Mayer of Princeton University said it needs to be made easy for people to manage and protect them against coercion.

“An opt-out law creates unfortunate incentives and latitude for businesses to bury, obfuscate and burden privacy choice,” Mayer said. “Too often, opt-out choice is no choice at all.”

Joseph Jerome, director for multistate policy for Common Sense Media, said the debate whether an opt-in or opt-out approach to data usage is followed misses the point and that the focus instead should be on minimizing its use only to the service requested by the user.

“The reality is both are easy to manipulate,” Jerome said. “Opt-in consent sounds like a great privacy protective measure. … But we’ve seen in Europe under the general data protection regulation that companies use manipulative design and confusing options to get people to say whatever answer they want.”

Sparta resident Richie Etwaru, founder and chief executive officer of Hu-manity.co, said the challenge is that data is a two-sided addiction: Consumers love free stuff, and every corporation has to become an intelligence company.

“The freemium business model was cultivated and originated by drug dealers, and there are only two industries in the world that calls their customers users – the illegal drug industry and the software industry,” Etwaru said.

There are also disagreements over whether it would be best for a data privacy law to be enforced by the attorney general only or by allowing private lawsuits. Two of the three proposals allow for civil lawsuits to be filed.

Anthony Anastasio, president of the New Jersey Civil Justice Institute, said businesses would be hamstrung by questionable complaints over legitimate uses of data.

“Plaintiffs’ lawyers, they will pursue aggressive interpretations of those requirements and play effectively a game of gotcha with businesses that may be operating in good faith,” Anastasio said.

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At the end of the two-hour hearing, lawmakers seemed to agree that more work on the bills was needed. But they also appeared committed to trying to find a bill that can be pass and be effective.

“These days, human beings are the – you know, we are the wood and the coal and the other precious metals of the Earth,” said Assemblyman Herb Conaway, D-Burlington. “Human beings now are the commodity.”

Michael Symons is State House bureau chief for New Jersey 101.5. Contact him at michael.symons@townsquaremedia.com.