DeSantis ‘digital bill of rights’ takes shape in Fla. legislature

A pair of bills are aimed squarely at the nation’s largest tech companies.
Florida state Rep. Fiona McFarland in her office on Thursday, March 25, 2021 at the Florida state Capitol in Tallahassee. (AP Photo/Bobby Caina Calvan)

Florida Gov. Ron DeSantis’s (R) call for a “digital bill of rights” spawned a pair of data privacy bills in the state legislature aimed squarely at the nation’s largest tech companies.

The nearly identical House and Senate measures blend DeSantis-infused antipathy toward “Big Tech” with elements of comprehensive data privacy laws from other states, and come ahead of the governor’s likely presidential campaign.

The result is a unique approach — amid a digital privacy legislative wave in states across the country — that aims to give consumers more control over their online footprint while also protecting youth and addressing conservative grievances over how online platforms moderate content.

“The title of the bill is ‘tech transparency,’ and that is what we hope to bring,” said Rep. Fiona McFarland (R), the prime sponsor of the House measure. Sen. Jennifer Bradley (R) is sponsoring the Senate companion bill.

The International Association of Privacy Professionals says momentum for state comprehensive privacy legislation “is at an all-time high.”

Last month, Iowa became the sixth state to enact such a law, after California, Colorado, Connecticut, Utah and Virginia. The Texas House unanimously advanced a bill this week known as the Texas Data Privacy and Security Act that is a priority of Speaker Dade Phelan (R).

IAPP is tracking comprehensive privacy legislation in more than 20 states this year, but the Florida bills — which defy easy categorization — are notably missing from the organization’s map.

The bills do appear on a separate state privacy tracker map maintained by attorney David Stauss of the Husch Blackwell law firm.

Typically, comprehensive digital privacy laws apply to companies that control or process the data of 100,000 or more state residents. By contrast, the Florida bills would only cover companies that gross more than $1 billion a year and that make at least 50% of their revenue from advertising or that operate a consumer smart speaker.

That would seem to limit the scope of the proposed law to only a handful of the largest tech companies including Amazon, Apple, Google and Meta.

Keir Lamont, director for U.S. legislation at the Future of Privacy Forum, called it a “targeting mechanism unlike anything we’ve seen in the existing landscape of comprehensive privacy bills.”

“It definitely appears to apply to a much smaller range of companies and only companies in particular sectors,” Lamont added.

McFarland, who has worked to pass digital privacy legislation in Florida since she was first elected in 2020, said the narrow scoping is by design.

“We’re quite cognizant of the burden on businesses for implementation, and where we were comfortable is if you’re a billion-dollar company maybe that’s a cost that we ought to expect you to bear,” McFarland told Pluribus News.

For those companies, the rules of the road would mirror what has been enacted in other states. Consumers would have the right to opt out of the sale of their personal information, the right to see the data a company has on file about them, and the right to request that information be deleted or corrected.

The bills also contain protections related to biometric data and the collection of personal information by voice-recognition features and devices.

Additionally, an amended version of McFarland’s bill aims to address concerns about how companies target youth online. The bill now contains elements borrowed from California’s first-in-the-nation youth digital privacy law, also known as age-appropriate design, which passed last year and is being considered in additional states.

Among the restrictions, online platforms that are used primarily by children would be prohibited from collecting the personal information or geolocation of a child. They would also be barred from employing “dark patterns” to get kids to reveal more personal information.

A third element of the Florida bills deals with content moderation, a key issue for DeSantis who in 2021 signed a law to bar social media companies from deplatforming political candidates. Under the proposed legislation, a search engine such as Google would have to reveal how it “prioritizes or deprioritizes political partisanship or political ideology in its search results.”

“Clearly if you look at search today versus like 10 or 15 years ago, it’s radically different in terms of the results you are getting … what’s going on behind the scenes,” DeSantis said at an event in February to announce his “digital bill of rights.”

The bills would also bar government employees from requesting that social media companies take down content or delete certain users, with exceptions for criminal activity or matters related to public safety.

Taken together, the elements contained in the sprawling Florida bills represent an amalgamation of digital privacy, age-appropriate design and political content filtering.

“Florida really stands apart” from other states advancing digital privacy legislation this year, said Lamont with the Future of Privacy Forum.

McFarland, the House sponsor, described the behind-the-scenes work on the bills as a group effort with Speaker of the House Paul Renner (R), Senate President Kathleen Passidomo (R) and DeSantis’s office, “reflecting two years of vociferous negotiation over [data privacy].”

Asked whether the bills have become a vehicle for DeSantis’s presidential ambitions, McFarland acknowledged the governor’s rising national prominence, but said: “I can’t focus on whether it’s part of a larger platform for something else.”

DeSantis’s office did not respond to an email requesting comment on the bills.

The House and Senate measures both cleared their respective committees with unanimous votes. Despite the bipartisan support, they are engendering strong opposition from the tech industry.

Chamber of Progress, a center-left industry group, gave Florida Republicans its “Worst Constitutional Violations” award this week.

“Leave it to Florida Governor Ron DeSantis to propose a tech agenda so thoroughly unconstitutional that our list of violations is longer than the Bill of Rights itself,” Chamber of Progress wrote.

In a letter to Florida state senators, the Computer & Communications Industry Association warned that the legislation “may raise constitutional concerns, conflict with federal law, and risk impeding digital services companies in their efforts to appropriately manage content online and provide consumers with optimized online experiences.”

Regarding the search engine prioritization provision, CCIA said the disclosures would “provide a roadmap to criminals and adversaries on how to defeat the measures the digital services employ to protect consumers from online threats.”

A separate pair of bills pending in Florida would implement another plank of DeSantis’s digital push: a ban on TikTok and other social media apps linked to China and other “countries of concern” from government devices and systems.