CHEYENNE — Wyoming may be a frontier state, but it sure loves its fences.
More than a century ago, Wyoming built its stock with fences, its forebears reining in the wild, open spaces with apportioned grazing lands and property lines all neatly demarcated within the otherwise craggy and rugged state’s clean, rectangular border.
But as the state enters a new frontier — with eyes toward conquering emerging marketplaces in technology — can Wyoming’s current leadership similarly rein in the borderless expanses of the internet? Is it feasible — or even possible — to try to regulate the digital world within the very real borders of a state’s laws?
Several lawmakers this year seem willing to try.
This week, members in both chambers of the Wyoming Legislature voted to take on three distinct pieces of legislation that could extend a number of laws typically seen in the real world into the digital realm, part of an increasing trend in state legislatures across the country to apply real-world legislation to the digital world.
One bill, which passed second reading in the Senate on Monday, would permit judges to issue warrants for digital records stored on out-of-state servers. Another would essentially extend First Amendment protections to coders or app developers to spare them from prosecution if their products are used in criminal activity, granting what essentially amounts to a “shield law” for computer programmers.
Most ambitious of all was Teton County Democrat Mike Yin’s House Bill 101, which — if passed — would have held all internet service providers accountable for protecting the personal information of their users.
That proposal failed in the committee stage earlier this week.
While all three pieces of legislation looked to accomplish different things, they all had one thing in common: They look to take real-world concepts and apply them to the digital world.
But why are they necessary?
For Cheyenne Republican Sen. Tara Nethercott — who drafted the digital warrant legislation — the impetus behind each bill was simple: to respond to real human needs in their districts. Nethercott’s bill, for example, comes from a need for judges to issue warrants for critical digital evidence that may pertain to a crime committed in Wyoming and may have been generated in Wyoming, but may reside on a computer server in a different state.
Yin’s bill, meanwhile, intended to try something similar, forcing internet service providers to regulate the behaviors of vendors or website owners that may store an individual’s data in physical locations far from Wyoming, where the traditional arm of the law may not reach.
“It’s about consumer protection,” Yin said in an interview last week. “We’re still looking at emerging technology. Even though it’s been around for a long time, data privacy is still kind of at the forefront. We’ve got to tackle it sooner rather than later, and this is a first step to make sure we protect people’s information.”
It’s been a necessary step for state legislatures to step up and regulate the internet, Nethercott said. A lack of action from Congress on creating unified regulations for the internet have made measures like the Wyoming Legislature’s necessary, she continued.
“What it forces industry to do — like Rep. Yin’s bill does — is to come to the table and start regulating themselves more effectively before the fear of patchwork legislation takes place and they really lose control,” Nethercott said. “There is this incentive now to come to the table and respond in a meaningful way to provide their own self-regulation around data privacy. And I think that’s a good thing.”
What it also does, she continued, is lay the groundwork for more accountability from an industry that — despite being an essential part of modern life — is still managed as a for-profit service, rather than as a utility. The act of consenting to provide personal data to essential companies like Google or Facebook, she said, is something of a false choice. Like purchasing a telephone does not give a telecommunications company permission to listen to your phone calls, having a Facebook account should not immediately put your personal information on the auction block.
Nethercott argues having a Facebook page should not mean sacrificing Fourth Amendment rights just because a vital tool for interacting with the world around you — though regulated differently than a utility or a highway — is a “private entity” on paper. That’s particularly true, she said, considering that engaging in that system has become a requirement to having a meaningful interactions with the rest of the world.
“This is a really interesting time for the Fourth Amendment,” she said. “I see this at so many sectors, from the transparency dialogue to the data privacy dialogue, and how all these conversations interplay, and really what is the voluntary relinquishment of your Fourth Amendment right?
“Is it using Facebook? I don’t think so. The same thing working in government — does that mean you surrender your Fourth Amendment right? I think we need to have a larger conversation about what privacy means and what transparency means and understand where we want to be in that space.”
But it’s also about deciding when that privacy can be breached — in cases like Nethercott’s — or when it should be granted fully, like Rep. Tyler Lindholm’s digital expression protection legislation, which would shield coders from any liability tied to technology or programs they’ve developed.
“We want developers in the state of Wyoming to feel comfortable that, as long as they’re not doing something malicious or with criminal intent, Wyoming’s got their back,” he said in an interview last week. “We want to invent the next Facebook here.”
But how far should government go? While Yin argued that legislation like his would affect telecommunications businesses already operating in Wyoming, numerous questions remain about whether those firms would even be able to enforce the behaviors of companies using their infrastructure, prompting immediate criticism from those in the industry who argue his bill presents significant and unlawful loopholes.
“We believe consumers would best be served by a uniform, national framework that applies across the entire internet,” a spokesman for Charter Communications said in a statement to the Star-Tribune. “But if Wyoming moves forward with its own state privacy law, such law should apply equally to all online activity and include the large internet companies, data brokers and others whose principle business includes the collection, use and monetization of consumer data.”
Even Lindholm’s legislation, which narrowly passed the House of Representatives by a 36-24 vote after a contentious floor debate Tuesday, has some lawmakers reluctant, forcing them to reckon with the contrasts between one’s First Amendment protections and whether Wyoming should retain the right to prosecute the creators of technology used for criminal activity. In other words: Should the creator of a gun be prosecuted if that gun is used to kill someone?
“This has been one of the better debates we’ve had this session,” Mike Greear, R-Worland, said. “But I don’t look at these as written words. Code is a tool, it can create its own product as a result of that. I think we also have to look at there is nothing right now in the Wyoming code ... holding you liable for any of the hypotheticals we’ve mentioned. We’re trying to create a safe harbor for something where we don’t even have a liability in the state of Wyoming right now.”
With an absence of any type of national framework regulating the internet, however, Nethercott says it is now up to the states to begin defining how the internet should be regulated.
Moving forward, cautious lawmakers — like Lindholm — just want to be sure that legislation like Yin’s are directed at the proper culprit.
“The reality is — looking at these situations — we need to be very clear on whether we’re regulating an industry that is actually at fault for selling your data,” Lindholm said. “There are entities that are selling your data, they just don’t happen to be ISPs. These are organizations that you’re voluntarily signing up with and voluntarily using.
“If the state wants to step up to that situation and protect consumer data within the state of Wyoming, we should absolutely do that,” he added. “But we should do so in a manner that actually goes after the problem instead of pointing a finger at an entity that is not to blame and hasn’t done anything wrong.”
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