California! There is an effort underway in the Golden State to place a voter initiative on the ballot that would add several new individual privacy protections to the California Constitution.

Lawfirm DLA Piper published a thorough analysis of the proposal today, but I have a blog too, so here, in a nutshell, is what is being proposed.

Personally identifying information, when collected for a commercial or governmental purpose, "shall be presumed to be confidential." (Section 1)

Harm would be presumed whenever confidential personally identifiable information is disclosed without consent. (Section 2)

Confidential personally identifiable information may only be disclosed without consent if there is a compelling interest to do so and no reasonable alternatives exist. (Section 3)

"Personally identifiable information" would be defined as "any information which can be used," by itself or combined with other information, to identify a person. (Section 4(b))

You can see right away that this proposed state constitutional amendment, offered by former state senator Steven Peace and San Diego attorney Michael Thorsnes, hits all the flash points in the ongoing privacy policy debate:

Opt-In Scheme. Data collection and processing would be governed by an "opt-in" standard, making vast amounts of data off-limits for commercial use.

 PII If It Is Useful to Identify Individuals. The definition of "personally identifiable information" is much broader than the permissive definitions under discussion in the U.S. Department of Commerce-led multistakeholder privacy policy meetings and in the browser preference standards development initiative underway at the World Wide Web Consortium.

Presumption of Harm. The presumption of harm provision wades into a much-litigated issue in data breach and other privacy-related litigation, breathing new life into plaintiffs' claims. See, e.g., Yunker v. Pandora Media Inc., No. 3:11-cv-03113-JSW (N.D. Cal., March 26, 2013)(no Article III standing from mere data loss), and In re Google Inc. Privacy Policy Litigation, No. 5:12-cv-01382-PSG (N.D. Cal., Dec. 28, 2012)(mere data disclosure insufficient to confer standing).

Heightened Protections for All PII. The provisions on non-disclosure would make civil discovery more difficult, going above and beyond emerging, protective First Amendment-based standards for anonymous speech to all forms of personal information. See e.g., Thomas M. Cooley Law School v. Does 1-4, No. 307426 (Mich. Ct. App., April 4, 2013).

Businesses might take comfort in the proposal's curious interpretation provision, which states that the new constitutional privacy protections mist be "broadly construed" in order to achieve its stated purposes yet also be construed "to be consistent with all federal and state laws ...." This language is pulling in two different directions. "Broadly construed" would seem to increase state constitutional protections for personal information, but "consistent with all federal ... laws" will surely be read as a limiting provision. Already there are decisions on the books indicating that individuals do not have Article III standing to sue in federal court unless they have actual, out-of-pocket losses arising from PII data breaches.

The proposed ballot measure, entitled the California Personal Privacy Initiative, must first be approved as to form by the state attorney general. According to the California Secretary of State's website, a ballot measure proposing a state constitutional amendment must receive signatures from at least 8 percent of the voters in the prior gubernatorial election before it can be placed on the ballot. The secretary of state's office estimates this number to be 807,615 voters.

The significance of all this? A narrow view of the evidence suggests merely that two individuals spent $200 to file a ballot initiative application with state officials. Moving into the realm of conjecture, the ballot measure might find favor with California voters, providing evidence that voters have a more expansive view of personal privacy rights than their elected representatives have demonstrated to date. Finally, if the measure ever becomes law, it will likely attract a constitutional challenge under the Commerce Clause, as well as federal legislation preempting laws of this sort. In the meantime, it's something to write about.

By Thomas O'Toole  

Follow @tjotoole