UPDATE: Votes are still being tallied, but the Nov. 3, 2020, election was a big night for tech measures—particularly in California, where voters passed Proposition 22, which allows companies to classify app-based drivers as independent contractors rather than employees. The change is a major victory for companies like Uber and Lyft. Elsewhere, voters affirmed online privacy, placed limits on police technologies, and embraced a consumer right to repair.
While technology has become more and more central to everything we do, regulations around the business and usage of that technology have failed to keep up.
Congress has been deadlocked on some of the biggest tech policy issues. Lawmakers have debated passing a national privacy law for years, police reform—which includes limitations on facial recognition technology—is stalled, and our internet infrastructure lags behind much of the rest of the world’s. And while the Department of Justice just filed a major lawsuit against Alphabet for antitrust violations, new federal legislation recommended to rein in Big Tech is unlikely to pass anytime soon.
That’s left controversial questions surrounding technology and the tech industry under dispute—from whether gig workers deserve full benefits, to precisely what sort of personal data should be private, to how to expand internet access, to whether there should be restrictions on the police accessing private technology and the public accessing police technology. Now many of those thorny issues are going directly to the people come Nov. 3, when voters in several states and cities will consider a slate of tech-related measures whose fate could impact how these pressing issues are handled around the country.
Here’s a roundup of some of the big questions on the ballot in 2020.
California: Should Gig Workers Be Contractors or Employees?
In August, Lyft and Uber threatened to suspend their ride-sharing services in California if they had to comply with AB5, a 2019 state law that requires companies to treat most workers, including those in the gig economy, as employees rather than independent contractors. The suspension was put on hold when California’s 1st District Court of Appeal ruled that the companies didn’t have to comply with the law while their lawsuit over AB5’s constitutionality proceeds.
Now California voters will weigh in on the issue with Proposition 22, which if passed, would allow tech companies to classify app-based workers—those who drive for Lyft, Uber, DoorDash, Postmates, and Instacart, for example—as independent contractors, exempting the gig companies from complying with AB5.
If Proposition 22, which requires majority approval, passes, drivers will remain as independent contractors, but they would gain some benefits—mainly receiving 20 percent above the local or state minimum wage, depending on their location.
Amount raised by the “yes” campaign for California Proposition 22, as of September.
Source: San Francisco Chronicle
The proposition is also self-protecting, as it contains language that would require any legislative amendments to the bill—meaning any law having to do with the employment status of “app-based drivers”—to pass with seven-eighths (87.5 percent) of the legislature’s support.
If the ballot measure fails, gig companies may have to classify their drivers as employees, which could give them a fuller slate of benefits, like paid sick leave and overtime pay.
As of September, the “yes” campaign, which is backed by major tech companies and the California Republican Party, had raised more than $181 million, compared to the nearly $16 million raised by the opposing side. No other ballot measure has raised this amount of money, making it the most expensive in the state’s history. Those opposed include senators Kamala Harris, Bernie Sanders, and Elizabeth Warren, as well as the California Democratic Party.
RESULT: 👍 Proposition 22 passed.
California: Should Tech Companies Pay You for Your Private Data?
Proposition 24, The California Privacy Rights Act of 2020, looks a lot like an existing law, the California Consumer Privacy Act of 2018, which gives state residents some control over their online privacy and data, like the right for consumers to know what personal information businesses collect and the right to delete it.
If the proposition passes, it would further codify these protections and create a $10 million agency to enforce these laws.
“The main purpose of the proposition is to lock in the beneficial points of the California Consumer (Privacy) Act,” said Jamie Court, the president of Consumer Watchdog, a nonprofit organization that advocates for consumer rights and supports the proposition. “After the California Consumer (Privacy) Act passed in ’18, 2019 was spent defending it in the legislature from assault.”
The ballot measure also would allow companies to offer discounts, rewards, or loyalty programs in exchange for someone’s personal information. The proposition takes an opt-out approach, meaning individuals have to tell companies to stop collecting their online data and personal information. Those two elements have drawn criticism.
“Privacy shouldn’t be something that people pay for,” said Jacob Snow, an attorney at the American Civil Liberties Union of Northern California, which opposes the proposition. “It’s a fundamental right.
RESULT: 👍 Proposition 24 passed.
California: Is an Algorithm More Fair Than Cash Bail?
Proposition 25 seeks to eliminate a cash-based system for bail and instead assign each person accused of a crime an algorithmically generated risk score to determine if he or she should be locked up in jail pending trial.
Advocates for both sides of the proposition argue that the alternative is discriminatory. Those in favor of the proposition say the bail system has less to do with a person’s likelihood to commit a new crime and everything to do with how much money that person has—poor people accused of a low level crimes might spend months in jail awaiting trial, while rich people accused of violence can buy their freedom while they fight their case.
But opponents of the measure, some of whom also oppose the cash bail system, say risk assessments, which are already used in the federal criminal justice system, have been shown to be biased against Black defendants. Under the algorithm, defendants would be scored based on their likelihood to commit a crime or skip bail, with counties in charge of determining the exact factors considered, according to the Los Angeles Times.
As the nonprofit newsroom CalMatters points out, the referendum has created some surprising political divides. Proponents of the measure include democratic governor Gavin Newsom and assembly speaker Anthony Rendon. Opponents include the bail bond industry, which profits from the status quo, as well as civil rights advocates like the state NAACP and Human Rights Watch.
RESULT: 👎 Proposition 25 was defeated.
Massachusetts: Do Consumers Have a Right to Control Their Car’s Repair Data?
In 2012, Massachusetts voters overwhelmingly approved a ballot initiative creating the nation’s first right-to-repair law, focused on automobiles. That law requires car manufacturers to offer all of their diagnostic tools, replacement parts, and repair documentation to the public so that independent mechanics and mechanically inclined car owners might perform repairs.
A lot has changed in the automotive world since the original bill passed: Cars look more like computers, and mechanics increasingly rely on diagnostic data to solve problems and perform repairs. Many cars sold today come with cellular radios that send this telemetric data back to manufacturers—and it’s often encrypted, essentially creating a repair monopoly for authorized-dealer mechanics.
Amount spent by car manufacturers to defeat Massachusetts Question 1.
On the ballot this year for Massachusetts voters is an update to the original law, covering control and access to the cars’ telemetric data.
Car manufacturers have spent more than $25 million to defeat the measure.
When the original bill passed, all the major car manufacturers signed a memorandum of understanding voluntarily adopting the requirements of the Massachusetts law nationwide.
The original law has also served as a template for similar “digital” right-to-repair laws covering smartphones, game consoles, and other consumer electronics. (Read more about the landscape of right-to-repair laws across the country.)
RESULT: 👍 Question 1 passed.
Michigan: Do Police Need a Warrant to Search Your Phone?
Protection against “unreasonable search and seizure” is guaranteed under the Fourth Amendment of the U.S. Constitution as well as Michigan’s state constitution.
Courts have tended to rule that electronic data is protected under these laws, but the rulings have been focused on specific scenarios, such as a GPS tracker attached to a suspect’s car (United States v. Jones) or cellphone location data (Carpenter v. United States). Proponents of Ballot Proposal 20-2 argue that the state constitutional amendment would codify and broaden protections against warrantless searches of electronic data as technology evolves. Opponents argue that it could inhibit the police’s ability to investigate. “State law has not kept pace with technology,” The Detroit News wrote in a supportive editorial.
RESULT: 👍 Ballot Proposal 20-2 passed.
Akron, Ohio: Who Gets to See Police Bodycam Footage?
Voters in Akron, Ohio, will decide on Issue 2, a proposed amendment to the city’s charter that would require local police to publicly release all bodycam and dashcam footage in situations in which officers used deadly force or caused “serious bodily injury.”
The killing of George Floyd by a Minneapolis police officer in May 2020 prompted a wave of legislation and ballot measures. In June, New York City mandated that bodycam footage be released within 30 days whenever the police use a Taser, gun, or other types of serious force.
In Akron, police initially refused to release video of the January shooting of Elijah Cade, a 19-year-old Black man, after a traffic stop. The Akron Beacon Journal has also written about how even the city’s official police auditor does not have access to body camera footage. The proposal would still allow numerous exceptions under state law.
Body cameras are supposed to increase police accountability, but critics say they don’t always. Cameras may “simply intensify police surveillance of communities,” according to the Leadership Conference on Civil and Human Rights, and create the foundation for more sophisticated surveillance, such as the use of facial recognition, said the EFF.
RESULT: 👍 Issue 2 passed.
Chicago, Ill.: Should Government Fund Broadband Access?
About one in five children in Chicago lack broadband access, and those kids are primarily Black or Latino. In July, the city council approved adding a simple question, Public Question 1, to the November ballot: “Should the City of Chicago act to ensure that all the City’s community areas have access to broadband Internet?”
The referendum is nonbinding, but it’s significant in light of the bigger national debate over whether internet access should be considered a public utility—especially now that the novel coronavirus pandemic has forced many people to conduct work, school, and other essential activities online.
Chicago mayor Lori Lightfoot has said the city should ensure access for all residents, starting with a $50 million program aimed at students. The ballot question is designed to gain support for future spending on broadband infrastructure, said city council member George Cardenas. “It’s a question of social equity, and broadband (information) should be accessible to rich and poor alike,” he said in a Twitter message.
RESULT: Public Question 1 has not been called.
Portland, Maine: Can Police Use Facial Recognition Technology?
No federal law regulates the use of facial recognition software by law enforcement. Some cities are taking action. Starting last year with San Francisco, a smattering of American cities have moved to ban facial recognition technology, citing its potential to invade people’s privacy and for racial bias. The jurisdictions that have banned the tools now include Oakland; Somerville, Mass.; Portland, Ore.; and Boston.
In August, the Portland, Maine, city council approved a similar ban preventing city officials from using the software, and the city is now considering a referendum that would further strengthen the regulation, according to the Portland Press Herald.
Question B, if passed, would allow private citizens to sue the city for violations of the ban and collect either $1,000 or $100 per violation, whichever is greater, if successful. The measure would also forbid prosecutors from using evidence obtained through facial recognition and make the use of facial recognition grounds to suspend or fire a city employee.
RESULT: 👍 Question B passed.
This article has been updated to show post–Election Day results.