While the presidential election is still in the balance, several ballot initiatives with broad implications for how we use technology have passed.
Ballot initiatives pose questions to voters and can—if passed—create, amend, or repeal existing state laws. In total, there were 129 statewide ballot initiatives across the country in this presidential election, including many related to taxation and drug legalization.
Here’s a round-up of some of the initiatives on tech policy with broader national implications, and what they might mean for consumers, privacy, and corporations. We’ll update it as the passage of more such questions is confirmed over the next few days.
California: gig workers will not become employees
Proposition 22 was easily approved by California voters, meaning that gig workers for apps like Lyft, Uber, and Doordash will not become employees of those companies. Instead they will remain independent contractors. This essentially overturns AB-5, passed last year, which would have given gig workers the same protections as other workers, like minimum wage, benefits, and compensation. The proposition also includes a provision that a ⅞ majority in California’s senate is required to overturn it, making any changes very difficult. As Mary-Beth Moylan, a law professor at McGeorge School of Law in Sacramento, recently noted, it is more common for ballot initiatives to require a ¾ majority to pass, rather than ⅞.
A consortium of tech companies, including Uber, Lyft, and Postmates, spent more than $200 million in support of it—the most spent on any California proposition. Their huge financial advantage was amplified by their access to in-app marketing, including messaging that suggested “Yes on 22” would protect workers. In contrast, the opposition, led by labor unions, raised just short of $20 million.
Given the spending imbalance, the results were somewhat expected—and both the fundraising and the marketing may provide a playbook for future fights between tech companies and consumers.
Also California: expanded privacy protections for consumers
The “Consumer Personal Information Law and Agency Initiative,” a.k.a Proposition 24, also passed, adding more privacy protections for the state’s consumers. The proposition calls for creating a new enforcement agency for the state’s privacy laws, expanding the types of information that consumers can opt out of sharing with advertisers, and shifting the state “do not sell” provision to “do not sell and share.”
The measure was actually a bit contentious among privacy rights groups, as we explained in advance of the vote:
“Consumers would still have to opt into the protections, rather than opt out, and companies would be allowed to charge more for goods and services to make up for revenue they lose by not getting to sell data. This could make it harder for low-income and other marginalized groups to exercise their privacy rights.”
Massachusetts: a “right to repair” law for vehicles
Massachusetts voters overwhelmingly said yes to Question 1, “Amend the Right to Repair Law,” which will give car owners and independent mechanics greater access to wireless vehicle data. A similar law had passed in Massachusetts in 2013 that required diagnostic data to be shared with independent mechanics, but it did not cover wireless data, which has become more common in the seven years since. This law aimed to fill in that gap. Its passage is a blow to the auto manufacturers that lobbied for a no vote. They argued that this change would not give them enough time to protect cars’ security systems against hacking.
The law will apply to cars made from 2022 on, and it is likely that it won’t just affect Massachusetts. Auto firms, like other consumer product companies, tend to match the highest regulatory standards set by states.
Michigan: electronic data is protected from unreasonable search
Michigan’s Proposition 22, which requires a search warrant for electronic and data and communications, will pass with wide margins. A number of states have already passed similar legislation protecting electronic data, including Missouri and New Hampshire.
And here’s one that didn't pass:
California: courts will revert back to cash bail over risk assessment
California’s Proposition 25, which would have upheld SB10, a bill that replaced the cash bail system with criminal risk-assessment tools, will not pass by a more than 10-percentage point margin. It revisits a highly contentious and perennial debate in criminal justice reform that has been playing out across the country.
The question at hand is whether risk-assessment algorithms are a more just method over cash bail for deciding which defendants should be kept in jail before trial. Cash bail, which requires defendants to pay a sum of money set by a judge in order to be released, has been shown to discriminate against low-income individuals. Risk-assessment algorithms, by contrast, use historical data to predict the likelihood a defendant would reoffend during their pretrial period, and decide whether to jail or release them based on that probability.
While some argue that this offers a more “objective” alternative to cash bail, however, research has shown that such algorithms are also discriminatory—both against low-income people and against Black people who are disproportionately represented in the incarcerated population. It’s also hard for a defendant or lawyer to contest their decisions.
SB10 originally passed in 2018 and went into effect in 2019, making California the first state to abolish cash bail in favor of risk assessments. The decision generated heavy controversy, leading to the introduction of Prop 25 on this year’s ballot. A No on Prop 25 now repeals the bill, sending an interesting signal to jurisdictions around the country: cash bail may still be a discriminatory system, but replacing it with a discriminatory algorithm is not the answer.
Update Nov 4, 2020, 2:50pm ET: California's Prop 25 was added to the story. More updates will be added as other ballot measures are confirmed.