We have all experienced it. A quick Google search for a new windbreaker and suddenly your Facebook feed is nothing but North Face and Patagonia. One minute you are browsing for hand sanitizer on Amazon, and the next thing you know every other Instagram ad is for Germ-X. As consumers, these moments may be a bit unsettling, but are they harmful? Is this truly sinister snooping, or does micro-targeted advertising actually benefit us by connecting us with the most relevant products and services? These are among the questions making their way through courts and legislatures across the country as a national reckoning with Big Tech that began under the Trump administration and continues and accelerates under President Biden. The answer depends on your perspective.

An entire financial ecosystem exists around the creation, use, and sale of our personal data. This marketplace has been well-documented in books like Move Fast and Break Things by Jonathan Taplin, and documentaries like this summer’s hit “The Social Dilemma,” which both provide excellent background on this issue. Indeed, technology is no longer becoming a big part of our daily life; technology is our life. The integration of tech into our schools, our homes, and even our bodies has profoundly changed the way we live, but its consequences are not yet fully understood. What we do know is that the right to privacy runs deep in the American ethos, shaping a shared cultural preference for discretion and confidentiality. For example, a widely-cited 2019 global Consumer Privacy Report from Cisco had the following results:

  • People care about privacy, and a surprisingly large number (32%) have already taken actions to protect it;
  • Privacy regulation provides guardrails for innovation and helps to build trust;
  • Consumers value government’s role in regulating the use of personal data; and
  • Many consumers feel they are unable to protect their personal data, and their biggest challenge is to figure out what companies are doing with their data.

Clearly, consumers still prefer to control their personal information. That preference has been under attack for the greater part of 15 years, but now consumers and governments are starting to fight back.

The Four Horsemen of Big Tech–Facebook, Google, Amazon, and Apple– all face varying degrees of scrutiny from federal, state, and foreign governments. This past summer, Congress held a six-hour, 217-question hearing grilling those companies’ CEOs on issues ranging from data privacy concerns and antitrust inquiries to political bias. Facebook and Google, in particular, have been under fire for antitrust violations with monopolization lawsuits from the Federal Trade Commission, Department of Justice, and state attorneys general currently proceeding against them. Meanwhile, Republican politicians  express increasing concern with social media censorship of right-wing viewpoints, while Democrats are concerned with the proliferation of misinformation on these ubiquitous platforms. These issues may sometimes get conflated as general animus towards Silicon Valley, but make no mistake–these companies wield unprecedented power over our society, and they do so through the use and sale of our personal information.

Breaking up the Big Tech monopolies in search, advertising, and social media may ultimately be necessary, but in the meantime, what can states do to protect their citizens’ personal information? How do we move beyond trite refrains, such as  “Data is the new oil” or “If you aren’t paying for it, you’re the product,” towards a real legal framework for consumer privacy?

The most thorough blueprint for action under American law is the California Consumer Privacy Act (CCPA).[1] Passed in 2018 and effective in 2020, the CCPA was modeled, in part, after the European Union’s General Data Protection Regulation (GDPR), a first of its kind privacy law enacted overseas in 2016. The CCPA establishes four fundamental privacy rights for California consumers:

(1) The right to know about the personal information a business collects about them and how it is used and shared;

(2) The right to delete personal information collected from them (with some exceptions);

(3) The right to opt-out of the sale of their personal information; and

(4) The right to non-discrimination for exercising their rights under the CCPA.[2]

Following California’s example, states throughout the country are proposing privacy legislation modeled after the CCPA, among these being Mississippi.

Proposed by Senator Angela Turner-Ford, Senate Bill 2612 (“SB 2612”), entitled the “Mississippi Consumer Data Privacy Act,” was essentially a replica of the CCPA, seeking to enshrine the right to control the use and sale of your personal information, including geolocation, biometric data, and personal identifiers such as your Social Security number. By explicitly enumerating the four core rights outlined in the CCPA, the Mississippi Consumer Data Privacy Act joins California in returning control of personal information to the consumer. It further empowered the Attorney General to prosecute the unlawful use, sale, or disclosure of your data because  protecting  consumers’ private personal information is a substantial state interest.

It is crucial to continue pushing for laws such as SB 2612. Legislators may have mistakenly failed to prioritize consumer privacy in the 2021 session, but the fight is far from over. As for industry skeptics, while compliance with a consumer privacy law may seem like a fiscal and administrative burden in the short-term, the long-term sustainability of the technology sector depends on building trust with consumers. In addition, the fair and consistent application of privacy law across the market will foster a competitive environment under which innovation can continue to drive growth while still preserving the fundamental right to privacy.

The future passage of a Mississippi Consumer Data Privacy Act would be a monumental achievement for privacy advocates, consumers, and the State of Mississippi. The protection of personal information and the control of our own privacy are fundamental values that must coexist with the convenient benefits of technology.

[1] Cal. Civ. Code § 1798.100 et seq

[2] California Consumer Privacy Act Summary, Office of the California Attorney General.


                 MEET THE AUTHOR

Caleb Pracht is a member of the Class of 2021 at the University of Mississippi School of Law. After graduation, Caleb will sit for the Mississippi Bar Exam and join the Mississippi Attorney General’s Office as a Special Assistant Attorney General.