Local, state, national, and international—everyone is getting in on the privacy game. But what does the future hold for harmonization? And where does the new USMCA (the new NAFTA) fit in?

More on Stuart Brotman.

 

SPEAKERS

Wayne Stacy, Stuart Brotman

 

Wayne Stacy  00:00

Welcome, everyone to the Berkeley Center for Law and Technology's Expert Series Podcast. I'm the Executive Director of BCLT, and your host Wayne Stacey. Today, we have the second part of a discussion with Professor Stuart Brotman. If you recall, Professor Brotman is a professor of Media Management law at the University of Tennessee, and is pioneering a new model for addressing privacy issues. Today, we're going to actually focus on something a little different than the model we discussed last time that the carrot and stick and really start addressing some of the competition between different jurisdictions on how they're trying to regulate privacy and related issues. So Stuart, let me start with just the first question is, why is federal preemption such a contentious issue in the development of federal digital privacy legislation?

 

Stuart Brotman  00:53

Thanks, Wayne, it's a pleasure to be here. Well, federal preemption remains a sticking point, I think, particularly because it is a sticking point in the federal discussion, which means on one side of the aisle, you have the Republicans and the other, the Democrats and to the extent that they do not want to move closer to enacting legislation, preemption gives an obvious point of division between the two parties. Generally, you can characterize the Democrats as being favorable to preemption. And you can characterize the Republicans as not being favorable to preemption based on states rights and the ability of states to handle things. But we have a really interesting moving mix of players here, particularly because California in enacting the California Privacy Rights Act. And then, of course, before that the California Legislature enacting the California Consumer Privacy Act. So So there we have, essentially, particularly with the CPRA, which was enacted as a ballot proposition, we have the voters who have now essentially said, this is the type of privacy legislation that we want. And it's the only legislation so far that essentially has faced voters at the ballot box. And as you know, California has about 40 million people not that many voted, but certainly it represents us, the largest state in the union. And of course, two of the critical players are the Speaker of the House, Nancy Pelosi represents a congressional district in the San Francisco area. And, of course, Vice President and Kamala Harris, who of course, was the attorney general, when CCPA, the California Consumer Protection Act was adopted and obviously was a strong proponent of that. So even though they are Democrats, they also have the interests of California. And those interests, obviously, are to make the California laws as workable as possible, and not have the federal government come in, and essentially preempt them prematurely. And of course, then we have other states who have been added to the mix. So we have both Virginia and Colorado, which now have laws which have been enacted by the legislature and signed by the governor. And if you look a little bit at the political makeup of those states, Virginia, as you know, is what's characterized now as a purple state. And in the recent gubernatorial election, we saw it flipped pretty dramatically from the Democrats to Republicans. And so it's a very interesting state is a bellwether, but clearly in Virginia, there was enough popular support and a Democratic legislature, which passed this. So there are two Democratic legislators California and Virginia, which have favore