Microsoft's multiyear effort to get privacy legislation passed in its home state of Washington came up short for a second time last month when state legislators couldn't agree on a compromise version of what would have become the Washington Privacy Act.
But the losses at home haven't stopped Microsoft from trying elsewhere. Protocol has identified four other states — Arizona, Hawaii, Illinois and Minnesota — where the company is trying to get versions of the Washington legislation passed.
Now, the same privacy groups that helped quash the Microsoft-backed bill in Washington are being drawn into similar, simultaneous battles across the country against the same well-funded opponent.
"We work openly and collaboratively with legislators in any state interested in advancing people's privacy," Microsoft Chief Privacy Officer Julie Brill said in a statement. The company declined to provide a full list of states where it's working, but it confirmed the four Protocol identified.
There may be more. Versions of the Washington Privacy Act have begun popping up in states across the country, and Joe Jerome, director of multistate policy at Common Sense Media, says Microsoft's fingerprints are on many of them. "In almost every state where there's a version of the bill that looks like the Washington Privacy Act, that bill was introduced because someone from Microsoft introduced themselves to a lawmaker," Jerome said.
That was certainly the case in Minnesota. Last spring, a Microsoft lobbyist began shopping around a privacy bill in the state, looking for a lawmaker who might be willing to sponsor it. The search ultimately led to state Rep. Steve Elkins. Elkins spent a 25-year career in IT, and he was eager to apply his technical know-how in his new position in government.
Elkins said he sponsored the bill "as the convener of the discussion and not necessarily as an advocate." But a year later, he admits, "I thought I knew more about the subject than I really did."
The bill Elkins sponsored at Microsoft's behest was identical to an early version of the Washington Privacy Act, which Microsoft had been noisily advocating for in Washington state — and which privacy advocates there had been noisily opposing. Elkins quickly realized that the bill had gaps that had already drawn criticism from privacy advocates in Washington.
The bill would have given Minnesotans the right to access a copy of the data companies were collecting on them, the right to correct it and delete it, and the right to restrict the processing of that data, among other things. But like the original Washington Privacy Act, it would have created loopholes that exempted businesses from complying if they were using the data for certain "business purposes," and included definitions Elkins calls "loose."
Elkins said he spent the year after he introduced the bill burying himself in research and consulting with privacy groups. Last month, he introduced a new bill that he said is "basically plagiarized" from the latest version of the Washington Privacy Act. That bill gets rid of the business purpose exemption and some other line items privacy groups opposed. "The bill has been dramatically improved by the legislative process in Washington and will make a much better starting point for our discussions here in Minnesota," Elkins said.
Of all of the U.S. tech giants, Microsoft was among the earliest to support privacy legislation. It's been advocating for a federal privacy bill since 2005. In 2018, the company called for the regulation of facial recognition. It's also opted to extend data protections required in Europe and California to customers around the world.
"We believe people will only use technology if they can trust it, and strong privacy law is an important part of building trust," Brill said in her statement. "We believe it's important not to just call for new law but to engage constructively and openly to help make it happen."
But even as Microsoft has embraced privacy regulations, it has also butted heads with privacy groups, including the American Civil Liberties Union and the Electronic Frontier Foundation, over the precise design of these regulations. That's been particularly true in the case of the Washington Privacy Act. That bill was introduced in 2019 and again in 2020 with Microsoft's support, but it failed to pass both times after privacy groups fought hard for significant amendments. Microsoft also testified against an ACLU-backed bill that would have placed a moratorium on government uses of facial recognition technology in 2019, only to support a more limited facial recognition bill that was signed into law this March.
In Arizona, state Rep. Domingo DeGrazia said he was already in the process of writing a privacy law based on Washington's last year when he met with Microsoft lobbyists. In December, he and other Arizona legislators flew to Redmond to meet Microsoft executives and discuss the bill he was working on.
DeGrazia, who also sought feedback from Apple lobbyists, said Microsoft urged him to make changes that would harmonize his bill with Washington's and with Europe's General Data Protection Regulation. "Some of their suggestions were just to bring everything in line, so that if there is a state-by-state rollout, it's as easy for businesses as possible," DeGrazia said.
But not all of those suggestions would have strengthened privacy for consumers, DeGrazia said. For instance, Microsoft wanted to change DeGrazia's definition of "identifiable natural person" to mirror Washington's. It's a term used throughout the bill that's key to determining what data is protected under the law. DeGrazia had defined the term as "a person who can be readily identified, directly or indirectly." But he said Microsoft wanted him to adopt the original Washington definition, which specifies types of data that might identify a person, such as their name or specific geolocation information. DeGrazia worried that offering a few examples and not the full range of possible identifying data might risk limiting the law. He opted against expanding that definition.
"As a legislator, I have to run that middle line between protecting consumers as much as possible, but having something businesses can integrate that's workable for them," he said. "For every good negotiation, there should be a pain point on both sides."
Microsoft has also been seeking buy-in on the bill from advocacy groups in the states. Mandy Fernandes, policy director for the ACLU of Hawaii, said a Microsoft lobbyist and the company's senior director of public policy, Ryan Harkins, reached out directly late last year to get the organization's thoughts on both the Washington Privacy Act and the facial recognition bill Microsoft was backing. That's despite the fact that the ACLU in Washington had vocally opposed both bills.
The response from the ACLU in Hawaii was not much different, Fernandes said, noting that the organization draws a "pretty hard line" on the use of facial recognition for law enforcement purposes, which the Washington bill would allow. "We do not support that legislation. We are just on different sides of this issue," Fernandes said.
One particular point of frustration among privacy advocates is the problem Elkins encountered in Minnesota: Microsoft's Minnesota bill echoed the original Washington Privacy Act, as it was introduced in 2019, not the most recent iteration, which addressed many — though not all — of the issues advocacy groups opposed. That forces these groups to fight the same battle state-by-state against their better-resourced industry opponents.
"It's like, can we at least give them the most recent version that everyone can at least tolerate?" Common Sense's Jerome said.
Another concern is that these Washington-style bills preempt local laws that cities may want to pass. "We don't want to see a bill with loopholes, weak enforcement, and preemption becoming a so-called gold standard," said Jennifer Lee, the ACLU of Washington's technology and liberty project manager. "We want to make sure what happens in Washington doesn't set a ceiling for other states to pass stronger laws."
Despite the pushback they've received from the privacy community, the lawmakers who have worked with Microsoft agree the company has been a bigger champion for privacy rights than some other influential tech companies. "I've noticed other software platform companies like IBM and Apple are on board with this," Elkins said. "It's more the folks that are collecting data — the Googles, the Amazons, the Facebooks — that are much more reticent."
DeGrazia described a similar experience. "I did get in touch with the lobbyist for Google who was nonplussed by my efforts," he said. "It's understandable given their business model."
Microsoft has, however, stood beside those other industry giants in states like Illinois, where it joined the Internet Association and TechNet in opposing an ACLU-backed privacy bill last year. This year, a Washington-style bill was introduced in Illinois, sponsored by Rep. Kelly Burke. A Microsoft spokesperson confirmed that the company worked on that bill.
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For now, whatever momentum Microsoft was building in state governments seems to have been at least temporarily stalled by the onset of coronavirus. Not only has the virus cut short the legislative session in states across the country, but lawmakers and their constituents are now grappling with an endless to-do list of life or death issues. "When you start weighing out what's going to be important to your constituents, as far as putting food on the table or data privacy, data privacy is probably going to take a bit of a back seat," DeGrazia said.
At the same time, as states adopt new surveillance techniques to track the virus, Elkins argues it's more important than ever for states to simultaneously implement privacy laws to protect their constituents. "Ironically, there is more interest in the issue than ever because of the specter of widespread government tracking of our comings and goings for epidemiologic disease-tracking purposes," Elkins said.
As that conversation grows, Microsoft will undoubtedly be working to shape it.
