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The legislation, even opponents agree, has good intentions: protect the location data of users of smartphones, tablets and other technology equipped with satellite navigation.
But last-minute objections from a trade association that represents the U.S. wireless communications industry led many Hawaii lawmakers to vote against House Bill 702 on the last day of the 2019 session.
The bill, authored by Rep. Chris Lee, would prohibit the sale or offering for sale of location data without the consent of the individual who is the primary user of the tracked device.
In spite of the late opposition, HB 702 was passed and now awaits action from Gov. David Ige. He has until June 24 to indicate whether he may veto it.
The Washington, D.C.-based Cellular Telecommunications Industry Association (self-billed as “the voice of America’s wireless industry”), said in an April 19 letter to House leaders that the bill would “distort competition, create consumer confusion, and harm innovation.”
But Lee, chairman of the House Judiciary Committee, said recently that HB 702 was cleared by the Hawaii attorney general and the state Office of Consumer Protection.
“This is at the core of protecting people’s personal privacy, whether it’s a company trying to sell services or a stalker trying to track someone’s kids,” said Lee.
Lee said he had consulted colleagues in other states dealing with the same issue.
“What seems apparent is that the industry absolutely wants to continue selling people’s personal information and real time location, because they can make a tremendous amount of money from it,” he said.
Lee said the wireless industry does not want to be confronted publicly about the practice.
“What we have seen in other places is the industry trying to come in at the last minute and stop legislatures trying to protect people and their personal privacy,” he said.
Still, 17 representatives voted “no” on HB 702 and another five voted “yes” with reservations, suggesting its prospects of becoming law may be in jeopardy.
The opponents implied during a May 2 floor session that there were problems with the bill that they couldn’t talk about openly, but they alluded to the letter from the industry association.
The opposition was led by Rep. Sean Quinlan, who said he said he had “serious concerns about the bill and feared that his colleagues were rushing things in a desire to be the first in the nation to enact data-collection restrictions.
“I agree with the intent of this bill and I would actually like to thank the introducer for working on this measure,” Quinlan said. “But if we do something like this, it has to be really, really good — it has to be almost perfect. We can’t risk legal challenges, we can’t risk our constituents losing access to services like Google Maps or Amazon, or their banking.”
Quinlan closed by saying that there was “a lot more” that he wanted to say on HB 702 and indicated that his colleagues knew exactly what he wanted to say.
“But I can’t say it on this microphone without having my words struck from the record,” he said. “So I’ll just leave it at that and hope you’ll all join me in voting ‘no’ on this measure.”
House Speaker Scott Saiki immediately called for striking any remarks from Quinlan that were not appropriate to discussing the bill in question.
But other representatives soon spoke out against HB 702.
Jimmy Tokioka complained that the bill lacked clarity on what it would actually do, while Sharon Har said it would be irresponsible to pass a bill that may be unconstitutional. Har noted that the Legislature had already approved this session a bill settling claims against the state stemming from when legislation was found to be unconstitutional.
“Yet we passed it, and here we go once again, once again being irresponsible,” she said. “That is not what we have an obligation to do. We took an oath to the state constitution, so we have to be responsible in what we are doing. It’s not about politics, it’s about policy.”
Lee, Saiki, Quinlan, Tokioka and Har are all Democrats.
Republican Minority Leader Gene Ward elicited a few laughs when he said he would vote “no” on the bill “with reservations,” which is not an option. Ward said HB 702 was “half-baked,” and he criticized Democrats for not allowing Quinlan to speak openly on a bill about privacy.
“We have shut down one of our members who probably had a lot to say,” said Ward.
Asked after the session what he meant when he told his colleagues May 2 that there were things he could not say publicly, Quinlan did not elaborate. But he said he hoped the governor would veto HB 702.
It is unusual for a bill that received no testimony in opposition and not a single “no” vote as it moved through session to suddenly become a hot potato.
The bill spelled out this rationale for passage:
The legislature further finds that in recent years, companies that record, collect, and preserve location data have sold this location data, often without the knowledge or consent of the person who is the primary user of the satellite navigation technology-equipped device.
The legislature acknowledges that the sale or offering for sale of location data, which is essentially a permanent record of a person’s movement and daily life, without the person’s knowledge or consent, is an unfair and deceptive practice.
The only written testimony on HB 702 came from ACLU Hawaii, which in its support cited the strong privacy provision in Article I, Section 6 of the Hawaii State Constitution.
The ACLU also referenced a New York Times article from December titled, “Your Apps Know Where You Were Last Night, and They’re Not Keeping It Secret.”
The Times wrote, “Dozens of companies use smartphone locations to help advertisers and even hedge funds. They say it’s anonymous, but the data shows how personal it is.”
Versions of HB 702 passed the House and Senate unanimously and it went into conference committee in mid-April so that differences could be worked out. That’s when the CTIA sent a letter to House leaders.
CTIA vice president Gerard Keegan complained that the measure “applies to a specific type of information – location data – that is collected on devices containing one specific component, namely, satellite navigation technology, i.e., GPS. The bill does not define ‘location data’ and does not define ‘sale,’ which could lead to a host of unintended consequences. Without a definition of ‘location data,’ it is unclear what type of information would require consumer consent.”
Keegan asked House leaders to hold off on the bill until the industry could consult with legislators to address their concerns.
Asked for comment, Blake Oshiro of Capitol Consultants of Hawaii, CTIA’s local lobbyist, said, “Our April 19 memo and its concerns speak for itself.”
Quinlan said in an interview that HB 702 “was one of those things not really on my radar until late.” Once he looked more closely, he said he found the bill to be “premature.”
While agreeing that protecting privacy is important, Quinlan said the CTIA letter raised questions and presented possible loopholes.
“For example, you could still collect a lot of users’ data and use it to sell targeted ads and not necessarily trigger the clause in the bill,” he said.
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