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OK, these aren’t that all that complicated. Let’s dive in!
(Key to this chart: “CI” is a “Citizens Initiative”; “LR” is a “Legislative Referendum”; “CA” is a “Constitutional Amendment”; “SS” is a “State Statute.” Bonds are always numbered first.)
CISS | Proposition 14 | Bonds | Issues $5.5 billion in bonds for state stem cell research institute & grants |
CICA | Proposition 15 | Taxes | Requires commercial and industrial properties to be taxed based on market value and dedicates revenue |
LRCA | Proposition 16 | Affirmative Action | Repeals Proposition 209 (1996), which barred state from discriminating or granting preferential treatment based on race, sex, color, ethnicity, or national origin in public employment, education, or contracting |
LRCA | Proposition 17 | Suffrage | Restores the right to vote to people convicted of felonies who are on parole |
LRCA | Proposition 18 | Suffrage | Allows 17-year-olds who will be 18 at the time of the next general election to vote in primaries and special elections |
LRCA | Proposition 19 | Taxes | Changes tax assessment transfers and inheritance rules |
CISS | Proposition 20 | Law Enforcement | Makes changes to policies related to criminal sentencing charges, prison release, and DNA collection |
CISS | Proposition 21 | Housing | Expands local governments’ power to use rent control |
CISS | Proposition 22 | Business | Enacted law, facing referendum, clarifies that app-based drivers are employees rather than independent contractors and enacts several labor policies related to app-based companies |
CISS | Proposition 23 | Healthcare | Requires physician on-site at dialysis clinics and consent from the state for a clinic to close |
CISS | Proposition 24 | Business | Expands the provisions of the California Consumer Privacy Act (CCPA) and creates the California Privacy Protection Agency to implement and enforce the CCPA |
VR | Proposition 25 | Trials | Replaces cash bail with risk assessments for suspects awaiting trial |
Here are some notable endorsements — put your favorites in comments and I may incorporate them:
Gov. Newsom: Yes on 14, 15, 16, 17, 18, 19, 25; No on 20, 21
CADEM: Yes on all, except for No on 20 and 22, and neutral on 24
CAGOP: No on all, except for Yes on 20 and 22 and neutral on 19
Sierra Club: Yes on 15, 16, 17, 25; No on 22
League of Women Voters of CA: Yes on 15, 16, 17, 18, 25; No on 19, 20, 24; neutral on 14, 21, 23; “no position” on 22.
California Federation of Teachers: Yes on 15, 16, 17, 18, 25; No on 20, 22
Now, before we discuss them, check out this fantastic graphic by artist and political analyst Alfred Twu showing who, as of Friday, October 2, was funding both sides, and by how much. Snag and enlarge it if you’d like!
As Twu writes,
Who’s paying for that Prop? California’s $502,000,000+ ballot measure election donor list is topped by DaVita and Uber. Realtors, unions, landlords, and business associations are also big on the list.
Data is from the CA Fair Political Practices Commission Top Contributor list at http://fppc.ca.gov/transpa…/top-contributors/nov-20-gen.html
(That will, for example, affect my views of Props 22 and 23….)
Now let’s look at the twelve individual propositions:
PROP 14 is a relatively rare bird: an initiative bond measure, which is why it gets numbered first. The proponents want to replenish the fund of money for grants to stem-cell researchers within the state. Arguably, this makes it easier for the state to attract and keep scientific talent, and to keep industries using these advances to develop medical approaches.
My guideline on bonds is that they may be an appropriate means of finance when: (1) the benefit to be gained is to the benefit of people over the lifetime of the bond; (2) no other and better ways are availableto finance it; and (3) the benefit sought is significant enough to justify the principal and interest expenses. I raise this because objections to the financing mechanism is one reason why the LWV did not endorse it. Ryan will likely disagree, but I think that it passes all of these tests, so I favor it. Stem-cell based medical advances will accrue primarily to the benefit to the benefit of people in the future, and delaying them simply delays medical successes.
The other persuasive argument against it is that the original creation of the granting agency came at a time when the public wasn’t yet willing to fund projects in these areas — which is no longer the case. To which I answer: HUH? We’re about to have a Supreme Court that will very likely eliminate abortions in many states — and possibly in all of them. Federal money would not be available in a Pence Administration, at the least. California has to, to some extent, operate as its own enlightened nation-state — and this is a significant part of that.
And, frankly, if we’re going to float a bond, this is exactly when to do it. Interest rates are low and investors are howling to safe financial harbors. YES ON 14.
PROP 15 is the long awaited “split roll” modification to Prop 13. I understand that “starve the beast” types may want to oppose it on that principle — but for people concerned about equity, this is an obvious improvement. (Yes, it will mean higher costs for those mainly large corporations who rent space in large office buildings. But they won’t leave the state if this is the place where they can make money, as it will continue to be.)
Here’s what Prop 13 did(among other things): it “rolled back most local real estate assessments to 1975 market value levels, limited the property tax rate to 1 percent plus the rate necessary to fund local voter-approved bonded indebtedness, and limited future property tax increases to a maximum of 2% per year.” The value of California property rose about 1000% from 1975 to 2004 — 11 times as high — and nationwide has gained about another 43% since then. (California is probably higher; the national data only shows an increase from 1975 to 2004 of 275%. Orange County is incidentally, probably well over the state average.) It looks like there have probably been 10 years in the past 45 with inflation under 2%, but lets pretend that that cap reduced taxes in every year. With 2% increases annually, a $10,000 home in 1975 (yes, they existed) would have an assessment increase at most to $24,379 even if prices inflated to at least 2% (and it’s rarely below that) each year. But prices actually went $from 10,000 to about $110,000.
What you need to understand is that Prop 13 was intended to help older people stay in the homes that they want to keep, even as their incomes reduced after retirement, by freezing their property tax assessments — yes. I remember how it was sold to voters; I was 18 at the time and it was my first election — and then it would be reassessed only when (and I’m writing this without looking it up) it was sold, perhaps sufficiently improved. had added owners, or inherited.
This notion made some sense because people don’t live forever. We’re talking about maybe a 25 year benefit for most retirees, to keep their quality of living good, and that’s the sort of social expense we can absorb. A young couple who bought into a neighborhood in 1978 and never moved their primary residence would have also done very well, which has the advantage of enhancing neighborhood stability but the disadvantage of creating high disparities between neighbors.
(As an aside, the effect was also racially discriminatory as well. Blacks and Latinos could not buy houses — partly due to discriminatory practices in the real estate industry, partly due to inability to get loans and similar factors — in neighborhoods where the property would most appreciate, and were more likely to face live experiences that would force them to move. Prop 13 has never done much for their wealth. But while a reason to vote Yes on 15, it’s separate from the larger argument.)
The big problem that Prop 15 addresses is that now large office buildings are help by incorporated holding companies or partnerships with fluid ability to transfer membership — who then lease and allow sub-lease anything up to entire buildings and to tenants who may appear to own the building for decades (perhaps over a century,) In the absence of split roll, those entities are granted the same right of perpetual reassessment avoidance as individuals!
The problem should be obvious: corporations and even partnerships with fluid membership are potentially immortal. The assessment that they received back in, oh, October 1980 — in the midst of what for almost 30 years the worst recession since the Great Depression — could literally remain in effect for as long as the financial and governmental system itself remains.
This wasn’t the plan; this wasn’t the pitch; but this is what happened. And what that means is most all of the people who have bought property more recently, or rent from people who did, are paying a far greater share of property taxes (directly or in rent) than some of the world’s richest corporations in downtown LA.
I’m voting YES ON 15.
PROP 16: If you haven’t read the section just above on the racial impacts of Prop 13, you should do so. That sort of huge discriminatory effect of even a facially non-discriminatory law is one of the main reasons why we states allow the state to use affirmative action in public hiring, contracting, and college admissions. There are many, many others, such as the benefits of diversity in offices and campuses.
California made such initiatives illegal when it passed Prop 209. Prop 16 is designed to repeal that law and allows the use of such initiatives to the extent permissible by applicable federal and other state law. The state should be able to right such wrongs. YES ON 16.
PROP 17: This would allow convicted prisoners who have been paroled to vote. Not a lot of spending on this one. If someone has been rehabilitated, they should be re-enfranchised by law, not by the grace of the Governor. YES ON 17
PROP 18: Not a lot of spending on this one either. It says that if someone will be 18 by Election day, one can vote in the primary preceding that election to help them winnow down the choices on who they’ll get to vote for. Yes, they’re in high school, but it seems like a reasonable extension of the right to vote. YES ON 18.
PROP 19: This measure also deals with resetting property taxes. It giveth with one hand (allowing people to retain their freeze on tax assessments when they move in certain circumstances) and taketh with the other (reducing the ability to retain whose assessment freezes). I think that one can make a case for both on the merits — but looking at that funding chart I see that the California Association of Realtors — which has done so much to elect and pervert so many candidates — has spent $41 million, essentially unopposed, to get this measure passed.
You know what? I can’t trust that one of their smart lawyers hasn’t figures out a way to get something terrible into the fine print — and they’ve done little to earn that trust. Vote NO on 19.
PROP 20: There have been a variety of measures that have led to more humane treatment to those approaching, in, or having exited the criminal justice system. It has been fueled — by its instigators more so than the instigated — by seeking the political benefits of bigotry and fake news about the effects of these measures, and instituting a careless and carefree attempt to roll them back. If you want more jails and prisons, worse conditions, worse post-incarceration lives, etc. — if you think that it will really make your lives and our society safer and better — then you will want to support this. If you realize what a crock all of that is — and that it doesn’t prevent crime (because misdemeanors aren’t usually committed by people good at thinking ahead and balancing interests) and leaves a more desperate population non-conducive to safety and social harmony — you should join the rest of us and vote NO on 20.
PROP 21: This allows cities and counties to enact rent control ordinances. As Ryan will tell you, there is a strong argument that rent control has all sorts of negative and perverse effects. On the other hand, failure to control rents (at a minimum) just exacerbates the problems of homelessness and bankruptcies. It seems that giving local governments a sword to brandish, and let them decide whether and how to use it, is the wisest course because it allows for the greatest ability to respond to developing circumstances. (I know that some will disagree.) Things are worse than most of us realize, so I’ll vote YES on 21.
PROP 22: This is a referendum on the bill that re-designated many “independent contractors” in the gig economy — Uber, Lyft, and food delivery drivers are the prototypical examples — as employees. This was the correct move under the law, based on well-established multi-part tests over who controls the means and processes of work — but the gig economy had been allowed to get away without doing it. What that led them to enjoy — aside from not paying Worker’s Comp and Disability, and potentially any benefits at all, and having to abide by any of the state’s work regulations — was essentially a huge competitive advantage over their competitors who did have to do such things. Do they want to continue having this competitive advantage (which among other things denies workers their right to engage in collective action, for example to fight wage theft)? Sure they do! Do workers want them to be able to do it? Well … looking at ads, you would think so, but there are lots of people who disagree — people who would like gig work if it came with safety and dignity — who cannot fund their own ads.
For our benefit — but I suspect also for their benefit — I will vote NO on 22. The companies that can dump $185 million (and that’s just so far!) into this one proposition in this one election can afford to treat their employees like employees, just like everyone else must do. If there’s money to be made, they’ll still make it. If not, then maybe the unions can set up co-op enterprises to provide the same sort of service.
PROP 23: Again, look back up at the graphic showing funding. Just the two largest for-profit dialysis clinics alone — who have been accused of poor sanitary conditions, poor working conditions, and much else — have already poured in $86 million to fight against having to keep a medical doctor on hand while they operating. (And also, to prevent them from slamming their doors closed without state permission, in order to start a panic.) Their ads show kidney patients wailing about how they won’t be able to get dialysis if the for-profit clinics close.
That won’t happen. You know what will? If they really do want to close, the state will take over the clinics, likely transferring them to new owners (such as medical schools and public hospitals) who can do them right. Nobody dies. Just some investors get cashed out earlier then they wanted, still having made a bundle. When I vote yes, it will give some satisfaction to make there assholes pay for their scaring the hell out of dialysis patients, just to pad their profits. YES on 23.
PROP 24: This one’s sort of hard to explain. It deals with Consumer Privacy, Consumer Protection, the California Consumer Privacy Act of 2018 (CCPA), and the proposed California Consumer Protection Agency, which would enforce that 2018 Act. The ballot summary tells most of the story. If enacted, it:
- Permits consumers to: (1) prevent businesses from sharing personal information; (2) correct inaccurate personal information; and (3) limit businesses’ use of “sensitive personal information”—including precise geolocation; race; ethnicity; religion; genetic data; private communications; sexual orientation; and specified health information.
- Establishes California Privacy Protection Agency to additionally enforce and implement consumer privacy laws and impose fines.
- Changes criteria for which businesses must comply with laws.
- Prohibits businesses’ retention of personal information for longer than reasonably necessary.
- Triples maximum penalties for violations concerning consumers under age 16.
- Authorizes civil penalties for theft of consumer login information, as specified
I hear horror stories about consumer privacy, and what happens in California is likely to affect the rest of the nation. If this leads to cleaning up practices, it’s good. Yes, it might lead to frivolous lawsuits — and will almost surely lead to accusations of frivolous lawsuits — but I find that the courts are pretty good with stanching those, and creating the agency could mean creating an pre-filing requirement for an administrative action that should keep gunk out of the system.
We’re a fifth of the way through the 21st century; we might as well learn to take on these sorts of issues before we land in a dystopia. YES on 24.
Prop 25: The Bail Bonds industry is slightly outspending proponents of this proposition that would eliminate cash bail in favor of risk assessments as to the risk of a person’s flight from justice or of causing harm to others. Until those risks are acceptably low, people would stay in jail. We would no longer have a system where people’s friends and family exacerbate their financial woes to get a loved one (or even liked one) out of incarceration. We would no longer have a system where the wealthy can go free and the poor must stay incarcerated for years before their “speedy trial.”. It would be a better world.
The bail bonds industry would not survive, but it might transform. The bail bonds owners have the best contacts with bounty hunters, who will still be needed for when the risk assessment about flight risk fails. More importantly, they have years of experience with judging flight risks (and probably risks of harm to others as well), and they might have an important role in the risk assessment process. That would be a happy resolution as we move into a better world.
Not even the Republican Party opposes this. While proponents list a long list of names, opponents list just a few — and lots of organizations, mostly industry trade associations, chambers of commerce, and (for some reason) the Howard Jarvis Taxpayers Association. And their arguments proclaim “a right to bail” — which means presumably means a right to buy your way out of a bad situation even if it threatens others. And they sneer that computers will be the ones to decide who stays or goes — but those computers will be based on distilled experience with previous outcomes! What they really want, all in all, is profit and unfairness.
In a presentation I made today (Oct. 3) to the Anaheim Democratic Club on these propositions, Vern and Donna brought up some interesting points they
I say YES on 25! Free (from bail, not on bail) at last!
But …
There is another side to the story, which Vern raised as part of my talk to the Anaheim Democratic Club on these 12 propositions, so I’ll present it and then explain where I think is misguided.
The Argument against Prop 25 in the State’s Official Voter Guide — and if you haven’t received that yet, check your voter registration address because they might have it wrong! — is a combined work of a retired judge, the Executive Director of the Crime Victims Alliance … and Alice Huffman, President of the California State Conference of the NAACP. I take her arguments quite seriously, so let’s review them — but first, the ones that aren’t hers.
I presume that Huffman is not behind these talking points:
- “Prop 25 will endanger public safety!”
- No it won’t. It may lead to more people being released on their own recognizance if they pass the risk assessment tests — and bear in mind that the computer algorithms, unlike judges, don’t have to worry about being voted out at the next judicial retention election — but there’s no reason to think that it will do more poorly (especially as it becomes refined with experience) than judges do anyway. (One can of course eliminate all risk by keeping all accuseds in jail — but that leads to prison overcrowding problems and wholesale court-ordered releases of prisoners.) It doesn’t, however, make sense that the people who can afford bail and thus get released are any less of a risk of flight or violence than people who have to stay in jail because they can’t afford bail. Of course, if your view is that the poor are darker and darker people are more threatening to the cops, you may try to defend this view on that basis — but it’s really really racist.
- “Prop. 25 tosses out the tool that ensures that defendants show up for trial!”
- Prop 25 would get rid of bail. It doesn’t have to get rid of bounty hunters. If a court issuing a bench warrant wants to add issue an order that a bounty be put on a released defendant that flees justice, it can. (And it might be less costly without paying the middleman.)
- “Prop 25 will raise taxes because it costs money to implement!”
- Actually, computerized everything tends to be cheaper. Housing people in jail who can’t afford bail, but are not flight or retaliation risks, is what’s really expensive
- “Prop 25 will overburden the courts with hearings appealing the decision made by the computer program!”
- First of all, it doesn’t have to do that at all. A challenge to a computerized assessment of threats could be challenged in an administrative court, like many other administrative appeals. Or it could be done on a paper record rather than a full-blown hearing. But more likely is that the program (which doesn’t require a salary) will be used just as a tool to aid the judge’s decision-making.
- An algorithm is just a step-by-step recipe for how to make a decision — usually, but not always, a rational, decision, which I’ll get to below. It’s dispassionate; it’s not inflamed by lawyers’ theatrics or worries about being voted out of office, It’s easily able to identify hidden factors that may make it more or less likely to recommend release (and that either side may try to hide). It offers consistent advice, following the same rules, across judges and across all defendants before a judge, both on a given day and across days. It gives judges some cover for making unpopular — but nevertheless rationally appropriate — decisions. It will save judges time and effort, especially because it can be programmed to spit out the exact basis of its recommendation, along with calculated probabilities for both flight and violence.
- Seriously, there’s an entire cognitive psychology literature on how properly programmed computer algotithms make more rational and consistent decisions that even experts operating on their fallible attention and hunches. And the best thing is that if a computer algorithm seems to be making errors, you can fix it.
Now let’s look at the two points for which Huffman is probably responsible.
- Being based on information that includes racial profiling, computer programs would end up making recommendations “that have been proven to hurt communities of color.”
- And I’ll repeat what I ended with above: you can fix it. In fact, with a computer program, you can identify sources of racial bias more easily using this one weird trick: you run the profile multiple times to see why it is making decisions that disadvantage people of color, then you identify whether those bases of those decisions are improperly discriminatory, and then you change the value of those variables to see whether it leads to a different result. If it does, then you can eliminate that consideration, refine it, or assign a lesser weight to it. (You can’t do this with a judge, who may not even know the precise factors that are influencing their decisions.) If, for example, the variable for “lives near gang members” is in the system, you can see what happens when you zero it out. Ideally, the result is that it releases some persons of color who are not actually greater risks for flight or violence. You can calibrate the system against the decisions made by the best judges, etc. The computer doesn’t actually think; it calculates. You’ve heard of “garbage in, garbage out”? You can instruct it properly, and make sure that your computer isn’t being instructed with racist garbage.
- Along the same lines, Huffman argues that a computer “will create more biased outcomes against people of color and those from economically disadvantaged areas.”
- First, I think that those biases are already present within the current system, right? In fact, those biases will be stronger because of judges’ existing worries about the consequences if the err by being merciful that leads to flight or violence.
- Second, economically disadvantaged people have a harder time making bail. The present system says that if the same exact person, posing the same exact risks, wins a $10,000 lottery the day after their arraignment, now they get to go free. And that, I say, is nuts.
- Third, and again: you can fix it. In fact, this is the only kind of sentence recommending system that you really can fix.
I understand and honor these concerns — but let’s not fail to note that in these respects the present system already sucks. We can refine the system, with an eye towards inc incorporating information about when computers err by letting people out, over time — and with enough people being released pending trial, it won’t take that long to make great initial strides. We can refine the system in a similar way as how employment discrimination testers who submit identical job applications — one with a stereotypical African-American or Latino name and one with a name like “Jordan Brandman” or “Curt Pringle” — and see how different factors lead to indefensibly discriminatory results.
Huffman is right that there are tremendous problems in the bail system. But letting some (more likely to be of color) people out a “10% of $100,000 cash equivalent bond” while others (more likely to be white) out on their own recognizance does not solve the problem — in fact, it only intensifies it for those who must liquidate property or from whom they must borrow money.
She’s right about the problem — but she’s wrong to be opposing the best means of potentially solving it.
[Adding to this story: a reputable publication reports that Huffman has been taking money from the bail bonds industry write columns (in Agran-style fake newspapers claiming to represent minorities) to oppose Prop 25 — as well as Props 15 and 21 — and to support Prop 22!
According to public records at the California secretary of state’s office reviewed by the Prospect, the Committee to Protect the Political Rights of Minorities is an independent political group run by none other than Alice Huffman, who is both its treasurer and its controlling officeholder. It’s funded by advocacy groups behind those very propositions. In late August, the committee received $100,000 each from No on Prop 21 and No on Prop 15, both of which Huffman, and Minority News, have come out strongly against. And if that weren’t enough, those payments weren’t even made directly to Huffman’s committee. Rather, they were made to an intermediary: AC Public Affairs, Huffman’s personal consulting firm that she runs in parallel to her post as the president of the state’s NAACP chapter. The Committee to Protect the Political Rights of Minorities has also made outgoing payments, in the amount of $155,000, to both AC Public Affairs and the California NAACP. Huffman founded AC Public Affairs in 1988, 11 years before she was elected president of the state’s NAACP chapter.
The Committee to Protect the Political Rights of Minorities is the outgrowth of an extremely peculiar operation that Huffman has set up for herself, and while to any layperson it might seem impossibly corrupt, it’s technically not illegal. Huffman, the 2004 chairwoman of the Democratic National Convention, has been paid more than $1.2 million so far this year by ballot measure campaigns that she or the California NAACP has endorsed, via payments made to AC Public Affairs, her consulting firm. She’s taken money from campaigns funded by commercial property owners fighting property tax increases, major corporate landlords opposing rent control, and even the particularly odious bail bond industry fighting an initiative to end cash bail, all issues that affect the state’s Black population. In turn, she’s used her platform, via the NAACP, her Committee to Protect the Political Rights of Minorities, or simply her personal brand, to endorse those measures, all without disclosing her direct financial incentives.
Huffman has long had a reputation as an endorsement for purchase among those in the know in California politics. But her dual position as leader of one of the foremost civil rights groups and pay-for-play consultant is particularly important in this election cycle, as racial justice has risen to the forefront of political priorities, especially for Democrats. In a state like California, functionally a one-party state, Huffman is uniquely positioned to influence the outcome of various measures with her endorsement.
That’s why 2020 has produced a record-setting windfall for her side hustle. According to CalMatters, “Huffman was especially sought after this year” in the wake of the hundreds of Black Lives Matter protests that occurred throughout the country. Huffman’s cashing in on that popular movement has garnered some criticism from activists and those who feel like she’s set up a standard where the endorsements of prominent Black rights groups are for sale to the highest bidder. Indeed, AC Public Affairs has received $590,000 from the No on Prop 15 campaign, $280,000 from the No on Prop 21 campaign, $200,000 from No on 25, and $85,000 from the Yes on Prop 22 campaign, according to public records.
Huffman has also been paid to support cigarette makers and pharmaceutical companies. How she can still show her face within the Democratic Party, and withstand censure from the NAACP, is shocking. Let’s remember her name.
With all due respect to the NAACP (and maybe ACLU?), I’m still YES on 25.
Vern is at present a NO. That might now change, if he agrees that she’s a klepto. (UPDATE: It did not.)
Hi, regarding Prop 24, it looks like it might be a little misleading. At https://progressivevotersguide.com/california they advise voting No on Prop 24, stating:
“Proposition 24 asks voters to amend the California Consumer Privacy Act of 2018 (CCPA) to include pay-for-privacy schemes, which provide better services and internet connection to those who pay more in order to protect their personal information while providing suboptimal services for Californians who cannot or do not want to pay more. Additionally, Prop 24 caters to tech companies by allowing them to upload a California resident’s personal information as soon as that resident’s device, computer, or phone leaves the state’s borders, and permits tech companies to completely ignore a programmable universal electronic “do not sell my information” signal. Under current law, privacy follows a Californian wherever they go, and businesses must honor the electronic signal.”
Thanks, Julie — I will check these out tomorrow and if convinced I may revise accordingly.
I’ve heard about your first point, but I’ve also heard that it does not at all undermine Net Neutrality. I’ll get into the weeds.
I don’t think I’ve seen your second point raised; it concerns me a bit more, but it sounds like it might rely on a faulty approach to statutory construction. If there are federal provisions that provide some similar protections, they would still apply under the Supremacy Clause, regardless of travel or relocation. If not, I’d be very surprised at some implicit, let alone explicit, sacrifice of privacy once leaves the state. The state can only regulate within its own borders, so if something simply isn’t mentioned somewhere it’s not the case that the state is implicitly allowing data dumps of private information once you cross the Nevada border.
These kinds of arguments are often brought up in legislation, and they tend to be alarmist and specious, tossed out just to confuse the public. But sometimes people do catch a serious flaw, and this could be one of those times. I’ll get into those weeks as well. Thanks for your input!
It actually does explicitly remove protections once you leave the state.
Proposition 24 Section 15 changes one word in Section 1798.145 of the Civil Code from permit to prohibit, thereby completely reversing the previous meaning:
“(7) … This paragraph shall not [strikes permit, adds prohibit] a business from storing, including on a device, personal information about a consumer when the consumer is in California and then collecting that personal information when the consumer and stored personal information is outside of California.”
https://vig.cdn.sos.ca.gov/2020/general/pdf/topl-prop24.pdf
I’m going to answer you at length, but first Let’s take a look at ALL of Code Civil Code 1798.145 for proper context, as well as two sections from the same Title that help to see what the new title does and does not do. (I’m adding indentation to help non-lawyers/drafters keep clear what the different levels of the statute say):
PART 4. OBLIGATIONS ARISING FROM PARTICULAR TRANSACTIONS [1738 – 3273.16] ( Part 4 enacted 1872. )
TITLE 1.81.5. California Consumer Privacy Act of 2018 [1798.100 – 1798.199] ( Title 1.81.5 added by Stats. 2018, Ch. 55, Sec. 3. )
1798.145.
(a) The obligations imposed on businesses by this title shall not restrict a business’ ability to:
(1) Comply with federal, state, or local laws.
(2) Comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, state, or local authorities.
(3) Cooperate with law enforcement agencies concerning conduct or activity that the business, service provider, or third party
reasonably and in good faith believes may violate federal, state, or local law.
(4) Exercise or defend legal claims.
(5) Collect, use, retain, sell, or disclose consumer information that is deidentified or in the aggregate consumer information.
(6) Collect or sell a consumer’s personal information if every aspect of that commercial conduct takes place wholly outside of California. For purposes of this title, commercial conduct takes place wholly outside of California if the business collected that information while the consumer was outside of California, no part of the sale of the consumer’s personal information occurred in California, and no personal information collected while the consumer was in California is sold. This paragraph shall not permit a business from storing, including on a device, personal information about a consumer when the consumer is in California and then collecting that personal information when the consumer and stored personal information is outside of California.
(b) The obligations imposed on businesses by Sections 1798.110 to 1798.135, inclusive, shall not apply where compliance by the business with the title would violate an evidentiary privilege under California law and shall not prevent a business from providing the personal information of a consumer to a person covered by an evidentiary privilege under California law as part of a privileged communication.
(c) (1) This title shall not apply to any of the following:
(A) Medical information governed by the Confidentiality of Medical Information Act (Part 2.6 (commencing with Section 56) of Division 1) or protected health information that is collected by a covered entity or business associate governed by the privacy, security, and breach notification rules issued by the United States Department of Health and Human Services, Parts 160 and 164 of Title 45 of the Code of Federal Regulations, established pursuant to the Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191) and the Health Information Technology for Economic and Clinical Health Act (Public Law 111-5).
(B) A provider of health care governed by the Confidentiality of Medical Information Act (Part 2.6 (commencing with Section 56) of Division 1) or a covered entity governed by the privacy, security, and breach notification rules issued by the United States Department of Health and Human Services, Parts 160 and 164 of Title 45 of the Code of Federal Regulations, established pursuant to the Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191), to the extent the provider or covered entity maintains patient information in the same manner as medical information or protected health information as described in subparagraph (A) of this section.
(C) Information collected as part of a clinical trial subject to the Federal Policy for the Protection of Human Subjects, also known as the Common Rule, pursuant to good clinical practice guidelines issued by the International Council for Harmonisation or pursuant to human subject protection requirements of the United States Food and Drug Administration.
(2) For purposes of this subdivision, the definitions of “medical information” and “provider of health care” in Section 56.05 shall apply and the definitions of “business associate,” “covered entity,” and “protected health information” in Section 160.103 of Title 45 of the Code of Federal Regulations shall apply.
(d) (1) This title shall not apply to an activity involving the collection, maintenance, disclosure, sale, communication, or use of any personal information bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living by a consumer reporting agency, as defined in subdivision (f) of Section 1681a of Title 15 of the United States Code, by a furnisher of information, as set forth in Section 1681s-2 of Title 15 of the United States Code, who provides information for use in a consumer report, as defined in subdivision (d) of Section 1681a of Title 15 of the United States Code, and by a user of a consumer report as set forth in Section 1681b of Title 15 of the United States Code.
(2) Paragraph (1) shall apply only to the extent that such activity involving the collection, maintenance, disclosure, sale, communication, or use of such information by that agency, furnisher, or user is subject to regulation under the Fair Credit Reporting Act, section 1681 et seq., Title 15 of the United States Code and the information is not used, communicated, disclosed, or sold except as authorized by the Fair Credit Reporting Act.
(3) This subdivision shall not apply to Section 1798.150.
(e) This title shall not apply to personal information collected, processed, sold, or disclosed pursuant to the federal Gramm-Leach-Bliley Act (Public Law 106-102), and implementing regulations, or the California Financial Information Privacy Act (Division 1.4 (commencing with Section 4050) of the Financial Code). This subdivision shall not apply to Section 1798.150.
(f) This title shall not apply to personal information collected, processed, sold, or disclosed pursuant to the Driver’s Privacy Protection Act of 1994 (18 U.S.C. Sec. 2721 et seq.). This subdivision shall not apply to Section 1798.150.
(g) (1) Section 1798.120 shall not apply to vehicle information or ownership information retained or shared between a new motor vehicle dealer, as defined in Section 426 of the Vehicle Code, and the vehicle’s manufacturer, as defined in Section 672 of the Vehicle Code, if the vehicle or ownership information is shared for the purpose of effectuating, or in anticipation of effectuating, a vehicle repair covered by a vehicle warranty or a recall conducted pursuant to Sections 30118 to 30120, inclusive, of Title 49 of the United States Code, provided that the new motor vehicle dealer or vehicle manufacturer with which that vehicle information or ownership information is shared does not sell, share, or use that information for any other purpose.
(2) For purposes of this subdivision:
(A) “Vehicle information” means the vehicle information number, make, model, year, and odometer reading.
(B) “Ownership information” means the name or names of the registered owner or owners and the contact information for the owner or owners.
(h) (1) This title shall not apply to any of the following:
(A) Personal information that is collected by a business about a natural person in the course of the natural person acting as a job applicant to, an employee of, owner of, director of, officer of, medical staff member of, or contractor of that business to the extent that the natural person’s personal information is collected and used by the business solely within the context of the natural person’s role or former role as a job applicant to, an employee of, owner of, director of, officer of, medical staff member of, or a contractor of that business.
(B) Personal information that is collected by a business that is emergency contact information of the natural person acting as a job applicant to, an employee of, owner of, director of, officer of, medical staff member of, or contractor of that business to the extent that the personal information is collected and used solely within the context of having an emergency contact on file.
(C) Personal information that is necessary for the business to retain to administer benefits for another natural person relating to the natural person acting as a job applicant to, an employee of, owner of, director of, officer of, medical staff member of, or contractor of that business to the extent that the personal information is collected and used solely within the context of administering those benefits.
(2) For purposes of this subdivision:
(A) “Contractor” means a natural person who provides any service to a business pursuant to a written contract.
(B) “Director” means a natural person designated in the articles of incorporation as such or elected by the incorporators and natural persons designated, elected, or appointed by any other name or title to act as directors, and their successors.
(C) “Medical staff member” means a licensed physician and surgeon, dentist, or podiatrist, licensed pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code and a clinical psychologist as defined in Section 1316.5 of the Health and Safety Code.
(D) “Officer” means a natural person elected or appointed by the board of directors to manage the daily operations of a corporation, such as a chief executive officer, president, secretary, or treasurer.
(E) “Owner” means a natural person who meets one of the following:
(i) Has ownership of, or the power to vote, more than 50 percent of the outstanding shares of any class of voting security of a business.
(ii) Has control in any manner over the election of a majority of the directors or of individuals exercising similar functions.
(iii) Has the power to exercise a controlling influence over the management of a company.
(3) This subdivision shall not apply to subdivision (b) of Section 1798.100 or Section 1798.150.
(4) This subdivision shall become inoperative on January 1, 2021.
(i) Notwithstanding a business’ obligations to respond to and honor consumer rights requests pursuant to this title:
(1) A time period for a business to respond to any verified consumer request may be extended by up to 90 additional days where necessary, taking into account the complexity and number of the requests. The business shall inform the consumer of any such extension within 45 days of receipt of the request, together with the reasons for the delay.
(2) If the business does not take action on the request of the consumer, the business shall inform the consumer, without delay and at the latest within the time period permitted of response by this section, of the reasons for not taking action and any rights the consumer may have to appeal the decision to the business.
(3) If requests from a consumer are manifestly unfounded or excessive, in particular because of their repetitive character, a business may either charge a reasonable fee, taking into account the administrative costs of providing the information or communication or taking the action requested, or refuse to act on the request and notify the consumer of the reason for refusing the request. The business shall bear the burden of demonstrating that any verified consumer request is manifestly unfounded or excessive.
(j) A business that discloses personal information to a service provider shall not be liable under this title if the service provider receiving the personal information uses it in violation of the restrictions set forth in the title, provided that, at the time of disclosing the personal information, the business does not have actual knowledge, or reason to believe, that the service provider intends to commit such a violation. A service provider shall likewise not be liable under this title for the obligations of a business for which it provides services as set forth in this title.
(k) This title shall not be construed to require a business to collect personal information that it would not otherwise collect in the ordinary course of its business, retain personal information for longer than it would otherwise retain such information in the ordinary course of its business, or reidentify or otherwise link information that is not maintained in a manner that would be considered personal information.
(l) The rights afforded to consumers and the obligations imposed on the business in this title shall not adversely affect the rights and freedoms of other consumers.
(m) The rights afforded to consumers and the obligations imposed on any business under this title shall not apply to the extent that they infringe on the noncommercial activities of a person or entity described in subdivision (b) of Section 2 of Article I of the California Constitution.
(n) (1) The obligations imposed on businesses by Sections 1798.100, 1798.105, 1798.110, 1798.115, 1798.130, and 1798.135 shall not apply to personal information reflecting a written or verbal communication or a transaction between the business and the consumer, where the consumer is a natural person who is acting as an employee, owner, director, officer, or contractor of a company, partnership, sole proprietorship, non-profit, or government agency and whose communications or transaction with the business occur solely within the context of the business conducting due diligence regarding, or providing or receiving a product or service to or from such company, partnership, sole proprietorship, non-profit, or government agency.
(2) For purposes of this subdivision:
(A) “Contractor” means a natural person who provides any service to a business pursuant to a written contract.
(B) “Director” means a natural person designated in the articles of incorporation as such or elected by the incorporators and natural persons designated, elected, or appointed by any other name or title to act as directors, and their successors.
(C) “Officer” means a natural person elected or appointed by the board of directors to manage the daily operations of a corporation, such as a chief executive officer, president, secretary, or treasurer.
(D) “Owner” means a natural person who meets one of the following:
(i) Has ownership of, or the power to vote, more than 50 percent of the outstanding shares of any class of voting security of a business.
(ii) Has control in any manner over the election of a majority of the directors or of individuals exercising similar functions.
(iii) Has the power to exercise a controlling influence over the management of a company.
(3) This subdivision shall become inoperative on January 1, 2021.
(Amended by Stats. 2019, Ch. 763, Sec. 2.3. (AB 25) Effective January 1, 2020.)
+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+_+
Now here are Sections 1798.120 and 1798.125 of the 2018 law, which so far as I can tell are UNCHANGED by this proposed statute.
1798.120.
(a) A consumer shall have the right, at any time, to direct a business that sells personal information about the consumer to third parties not to sell the consumer’s personal information. This right may be referred to as the right to opt-out.
(b) A business that sells consumers’ personal information to third parties shall provide notice to consumers, pursuant to subdivision (a) of Section 1798.135, that this information may be sold and that consumers have the “right to opt-out” of the sale of their personal information.
(c) Notwithstanding subdivision (a), a business shall not sell the personal information of consumers if the business has actual knowledge that the consumer is less than 16 years of age, unless the consumer, in the case of consumers at least 13 years of age and less than 16 years of age, or the consumer’s parent or guardian, in the case of consumers who are less than 13 years of age, has affirmatively authorized the sale of the consumer’s personal information. A business that willfully disregards the consumer’s age shall be deemed to have had actual knowledge of the consumer’s age. This right may be referred to as the “right to opt-in.”
(d) A business that has received direction from a consumer not to sell the consumer’s personal information or, in the case of a minor consumer’s personal information has not received consent to sell the minor consumer’s personal information shall be prohibited, pursuant to paragraph (4) of subdivision (a) of Section 1798.135, from selling the consumer’s personal information after its receipt of the consumer’s direction, unless the consumer subsequently provides express authorization for the sale of the consumer’s personal information.
(Amended by Stats. 2019, Ch. 757, Sec. 4. (AB 1355) Effective January 1, 2020.)
1798.125. (a) (1) A business shall not discriminate against a consumer because the consumer exercised any of the consumer’s rights under this title, including, but not limited to, by:
(A) Denying goods or services to the consumer.
(B) Charging different prices or rates for goods or services, including through the use of discounts or other benefits or imposing penalties.
(C) Providing a different level or quality of goods or services to the consumer.
(D) Suggesting that the consumer will receive a different price or rate for goods or services or a different level or quality of goods or services.
(2) Nothing in this subdivision prohibits a business from charging a consumer a different price or rate, or from providing a different level or quality of goods or services to the consumer, if that difference is reasonably related to the value provided to the business by the consumer’s data.
(b) (1) A business may offer financial incentives, including payments to consumers as compensation, for the collection of personal information, the sale of personal information, or the deletion of personal information. A business may also offer a different price, rate, level, or quality of goods or services to the consumer if that price or difference is directly related to the value provided to the business by the consumer’s data.
(2) A business that offers any financial incentives pursuant to this subdivision shall notify consumers of the financial incentives pursuant to Section 1798.130.
(3) A business may enter a consumer into a financial incentive program only if the consumer gives the business prior opt-in consent pursuant to Section 1798.130 that clearly describes the material terms of the financial incentive program, and which may be revoked by the consumer at any time.
(4) A business shall not use financial incentive practices that are unjust, unreasonable, coercive, or usurious in nature.
(Amended by Stats. 2019, Ch. 757, Sec. 5. (AB 1355) Effective January 1, 2020.)
Discussion to follow in my next comment!
The first (and main!) thing to consider is that consumer privacy protections established by the Consumer Privacy Act — which you can find here — regarding sale of information ARE NOT changed by this proposition. This proposition deals only with the collection and storage of data on devices, not of the further use of that data, and even that in only a limited context.
The second thing to note is that you raise a good question: why isn’t this being done through a new legislative enactment? And the answer to that, I think, is that asking legislators to pass a confusing bill that can be taken as undermining consumer privacy is an absolute non-starter. It won’t happen; everyone who voted for it would be subject to vicious attack ads by cynical (or confused, but mostly cynical) opponents. Hence, reliance on the initiative process — at least initially — to keep legislators from having to make some nasty decisions before the aspects of the law change on Jan. 1, 2021.
The third thing to note is timing: why does this have to be done now? I haven’t read, let alone analyzed, the entire bleeding 2018 law — as I would do if I were getting paid for this — but I did do a search for “the usual suspects” and found what I expected: parts of the law expire on January 1, 2021. And, furthermore, those parts are carve-outs that delay the imposition of new limits on what affected companies can do. Those limits spring into effect in just over 70 days.
The subdivisions that will expire (“become inoperative”) soon are (h) and (n).
Subdivision (h) excludes restrictions on information from job applicants and emergency contacts. Unlikely motivation.
Subdivision (n) excludes restrictions on information involving business to business communications. Possible.
Those are what I could find in a cursory search; there may be others.
The fourth thing to consider is: why do the digital services companies care about people leaving the state? One obvious answer might be that other states may share jurisdiction for what happens there. But I suspect that there’s a much easier answer: technology. As in: having different regulations for what they can do inside and outside of California imposes major burdens on what information they have to be able to track, analyze, confirm, and produce.
Now this can be done, with GPS — but it requires having automatic tagging of such data as forbidden or else disabling the data collection features altogether, which is truly a programming nightmare. The easiest fix would be not to collect such data AT ALL, but that undermines the value of all those free apps that allow people to sacrifice a little privacy as part of their pursuit of fun, convenience, or whatnot. It doesn’t even say that the legislature MUST enact such legislation, but only that they CAN.
Fifth and finally, your source for information is shoddy. The text “This paragraph shall not [strikes permit, adds prohibit] a business from storing, including on a device, personal information about a consumer when the consumer is in California and then collecting that personal information when the consumer and stored personal information is outside of California” is not under any subsection 7. Rather, it appears only once, under section 1798.145(a) which reads in full:
First of all, it’s clear from the wording that this is what we call a “scrivener’s error,” which (if mild enough) the Secretary of State can just correct on their own. The text is completely ungrammatical as presented. First, you don’t permit someone FROM an action, you permit then TO do an action. Second, if you’re permitting some action, you use the simple present tense, as in “I permit you to photograph me,” rather than a gerund such as “taking.” (You can say “I permit your taking a photo,” but that doesn’t fit the sentence cited.) The rest of the sentence makes clear that it deals with some negative action: you prevent or preclude or pre-empt someone FROM (different preposition) ACTING (gerund form) in a certain way.
This suggests to me that the original law intended to describe a negative action, not a positive one, and this is literally just cleaning up a scrivener’s error. That’s nothing to be afraid of.
All in all, then, I think that someone caught what they thought was a fatal Trojan Horse built into the agreement and has been publicizing it like crazy — but they either failed to (or chose not to) look into it sufficiently deeply. So I remain a YES on 24 — but I also invite you to write and submit your own piece on this or any other items on the ballot, as you have shown your great capabilities here!
(The reason this response is a couple months late: I assumed when I originally commented that entering my email address meant I would be notified of a reply, and since I never got an email, I assumed there were none. Today I randomly decided to come look at these comments and saw that you responded.)
Obviously, this is all moot now, but there a couple things I would like to say anyway:
I think you are probably right that it was just correcting an error; I did think the original language used strange grammar. But it does seem to me that if it was always meant to say that, it still means that we are not protected in that way. Even if it’s not removing a protection, it’s clarifying that the protection never existed. But I do not have extensive experience studying law or politics, so you likely have a better understanding on this point.
However, I must correct your rather insulting assertion that my information was shoddy. My source was the Secretary of State’s Text of Proposed Laws, which I linked at the end of my comment, and I’m not sure what other information source could be more reliable than that. Your misunderstanding seems to result from the fact that I was quoting the bill’s changes, while you were looking at the original wording. (The bill changes the original subsection 6 to 7 as a result of adding a subsection earlier, which you can see on page 60 in my previous link.)
Vern, do we have a way that people can elect to be notified of replies?
Leah, your correction is noted and accepted. I wasn’t trying to convey that you had done shoddy research, but just that your source was presenting misleading information. I didn’t realize that it was talking about the proposed text rather than the existing text; I don’t recall whether I followed it, but either way it’s my mistake. So your source wasn’t shoddy, and I apologize for any implication that it was your doing.
I want to repeat the last sentence in my comment: “So I remain a YES on 24 — but I also invite you to write and submit your own piece on this or any other items on the ballot, as you have shown your great capabilities here!” If you take a look around at all of the election writing that we do leading up to our endorsements, you’ll see that it is pretty overwhelming — and we’d love to have another person around who knows what she’s doing, as you clearly do. Thanks for checking in!
Thank you for the apology and the compliment. I did do fairly extensive (if amateur) research on the propositions, and I’m glad it showed. Also, thank you for your invitation to write a piece – I have always taken pride in my writing, and I may take you up on that at some point. How would I go about submitting something to the blog?
Vern — she should communicate in the first instance with you at your email address, right? I don’t want to be the one to give it out, despite that it is “known.”
I already wrote to her.
I generally prefer to see the legislature act instead of legislating by proposition, not least because of the difficulty of changing laws adopted by proposition, especially when the legislation contains dozens of pages of detailed regulation. But sometimes it is necessary (see Prop 103, creation of insurance commissioner).
On prop 24, Do we think the legislature will be unable to act to strengthen privacy? Has ti recently been weakening the 2018 law? Related point on prop 21 — it nullifies Costa-Hawkins, which the legislature could do as soon as it is in session. Has the legislature exhibited inability to act on this?
In reverse order:
Re Prop 21: Yes, the legislature has exhibited inability to act on repealing Costa-Hawkins. This is one of those instance where you can line up the Democratic representatives by some weighted combination of conservatism, greediness for contributions, and fear of primary challenge and there are always one of two more votes than necessary for the right thing not to happen. (This is why critics accuse the Democratic Party of playing 3-card Monte with most of its liberal supporters.)
Re Prop 24: it’s a more mysterious case. The person behind Prop 24 is (quoting from Ballotperia “Alastair Mactaggart [hereinafter “AMT”], a San Francisco-based real estate developer [who] was the proponent of a ballot initiative that qualified for the ballot in 2018 but was withdrawn after negotiations with the California State Legislature, which passed a revised version of the initiative called the California Consumer Privacy Act of 2018 (CCPA).”
The CCPA of 2018 missed some important things that this initiative is intended to fix. This time, AM T negotiated directly with the Silicon Valley emperors to come up with a plan that they would not oppose. (And, if you look at the funding report — they haven’t.) The big concession they apparently wanted was for some sort of “pay for play,” wherein greater privacy came at a greater price. (Bear in mind, being able to take advantage of private information is one way other than direct fees that these companies can make money. (You know: “if you’re not a paying customer, you’re the profitable product.”)
This is an odious trade-off to allow, for any privacy activist — but people are so lax about their privacy already, and coming up with uncircumventable plans to fight their efforts is so difficult, that I’m not entirely sure that it’s unacceptable. I’ll need time to get deep into the details to have an informed opinion, and I’m not there yet.
The fact that there will be an agency that can litigate — and either private rights of action, or someone’s misrepresenting it — is, to me, something good. What “pay to play” actually means in practice matters a lot — and class actions brought by such an agency about the meaning of this measure, which after all gives life to the general assurance of a right to privacy found in the California Constitution, is probably the best way for that litigation to proceed. (Remember: the Constitution rarely allows litigation on its bare language that hasn’t been codified into a statute. In other words, it doesn’t protect us right now.)
Arguably, the best result would be a narrow one either way: a loss that tells AMT that he has to go back to the drawing board with more advocates in the room, or a win that leaves the affected companies feeling less than daring about taking on this provision. (But narrow results are hard to engineer!)
That’s all I’ve got for now: if I had to vote today I’d roll the dice and vote yes.
No on Prop 24 because it is such a mixed bag, and as an initiative statute the legislature has limited authority to amend it. So it would be much more difficult to undo the detrimental aspects of 24 than it would be to modify the original CCPA to incorporate 24’s actual improvements.
Regarding Prop 25, it’s worth noting that last year the state legislature unanimously passed SB 36 to help expose and mitigate biases in risk assessment tools (which are already used to inform pretrial decisions in most California counties, according to PPIC). It may or may not be enough, but at least it indicates the legislature is aware of the potential problems and intends to address them. So I’m a cautious yes on 25.
https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB36
By the way, the republican party *does* oppose prop 25 – check ballotpedia.
Yeah, but they’re doing it because the get money from the bail bonds interests. Vern’s not going to go for that as an argument to vote Yes.
re Prop 25, “Alice Huffman, President of the California State Conference of the NAACP. I take her arguments quite seriously, so let’s review them”
Her arguments on Prop 25 are weak, for reasons you say (how can it possibly be the case that keeping the status quo will make things better?). Her arguments on Prop 15 are weaker. That the president of CA’s NAACP opposed the Democratic Party’s position on two very important measures…is intriguing.