What You Need to Know About Data Privacy and Cybersecurity: Oklahoma Computer Data Privacy Act

Insider Q&A with Oklahoma Legislators

Oklahoma is one of numerous states where consumer data privacy legislation has been proposed. The Oklahoma Computer Data Privacy Act (OCDPA), House Bill 1602, was authored by Rep. Josh West, R-Grove, and Rep. Collin Walke, D-OKC. If passed, the OCDPA would require that certain companies obtain prior consent before collecting and selling consumer data.

In this Insider Q&A, McAfee & Taft attorneys Sasha Beling and Zach Oubre are joined by the bill’s authors to answer questions about the pending bipartisan legislation, including what the bill is intended to do, why it’s necessary and why now, and how it will impact Oklahoma consumers as well as the companies who do business with them.

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Transcript

Sasha Beling:  Oklahoma joins a growing list of states in proposing legislation to protect consumer data privacy. We had the opportunity to sit down with the bill’s authors to discuss their bipartisan legislation.

Q: What is House Bill 1602?

Rep. Collin Walke:  So HB1602 is the Oklahoma Data Privacy Act. And its intent is to ensure that Oklahomans have control over their data privacy and their data information. That’s why it’s an opt-in, not opt-out because I think that opt-in is actually effective. And that’s why I think you’re seeing companies like Apple go to opt-in privacy policies as opposed to opt-out. And so, this bill is really an opportunity for Oklahoman’s to reclaim their privacy that was wrongfully taken from them, and that these companies never had a right to own in the first place. So that’s the concept behind HB1602, is to let Oklahomans have their privacy.

Q: Why did you propose this bill this session?

Rep. Josh West:  So, conversations between Collin and I started last year, early last year. And Collin had been working on this probably a year before I was, came on board with them, but I’m Republican, he’s a Democrat, we disagree on a lot of things but the things that we do agree with, we can come together and let’s be honest, you know, this is not partisan issue. And so, with everything that’s came out in the media in the last few years, I think people are a lot more aware and paying attention to this type of stuff. And so, we started having the conversation last session and we filed an interim study and it was heard this summer I had probably the most productive interim study that I’ve ever been a part of. And it’s just the right time to do it. I think that our constituents want it, and that’s the main reason we’re doing this. This has been driven by the constituents from around the state.

Q: What has been the response you have received about this bill so far?

West: All positive feedback right now, today, last count we got about 42 co-authors. So that’s pretty big, you looking at a House Bill that hadn’t been to committee yet and I would say by the time, I think this bill is gonna pass tomorrow in committee, I have no doubts it’s gonna pass by the time it gets to the floor, I think we’ll have a lot more co-authors. So members, I mean, like I said, this isn’t a partisan issue and I think everybody is probably hearing the same feedback from their constituents and so positive feedbacks from members, my constituents love it. You know, we’ve given updates throughout this process, just kind of some people contract this legislation. And every time we do, you know a legislative update and it’s, we’ve got Republican Democrats sitting there and, you know normally people get their political atmosphere they look at DC and that’s where they get their opinions by. But to see, when they see two people that disagree on a lot of things working together, I think that, they like that too and so, the fact that it is a bipartisan piece of legislation. But positive all the way around there is certainly opposition. And we’ve met with dozens of groups over the last, almost a year now. And we’ve never turned down a meeting with a, we want to make this the best bill that we can and we want to work with these different groups and to find out what would make it more palatable for them.

Q: Some language in this bill has been criticized as being ambiguous, including what a “sale” of consumer data is that requires prior consent. What is your response?

Walke: I don’t know a single lawyer that can’t parse the language, right? I mean, we’re still sitting here arguing about what our constitution means. So an argument about vagueness or ambiguity, that doesn’t bother me at all because you can say that about any bill that anybody’s gonna run at any point in time. And not only that, but I would suggest that if you’re looking for ambiguities, then you’re part of the problem because the whole point of this bill is it needs to be as broad as possible to keep tech companies from coming into your life without your permission. And so, consequently, we drafted that language broad enough to include even non-monetary right? So if somebody wants to transfer data in exchange for some other service, that counts. Why? Because we want it to be as broad as possible. Because that’s my privacy, that’s my right. That’s my data and you have no right to it.

Q: Does this legislation apply to “offline” data collection, business-to-business transactions, or employment matters?

Walke: So, first of all, with regard to employment matters, we wanna make sure that employers are protected. We believe that they are under the bill. Some lobbyists have even agreed with that point but they want some stronger language. So we’re gonna make sure that gets in there because we don’t want anybody to be unintentionally impacted by this bill. So employers are gonna be exempted out for certain items through compliance with federal and state laws. And then as far as business to business transactions or offline transactions, you know, it depends on how you wanna look at this in what you would define as, I mean certainly business to business transactions are covered, because I think that’s where the transfer of the information comes from in the first place. Offline is a little bit different, because the bill specifically pertains to internet connected devices. So, I don’t know how that might apply to this bill.

Q: How do you respond to criticism that laws like your proposed legislation increase the cost of doing business in the state?

West: Believe me, we’ve heard it from every single group that’s talked to us, but you know for me, there is some gray area but as far as the legislator looking at the piece of this legislation, then, hey, it’s either you agree with that your privacy should be protected or you don’t. And so, I don’t know what the cost is gonna be, you know, we’ve been told this is California on steroids, it’s gonna, costs the state in California $55 billion and I think that’s, I don’t believe that. We looked at that, we looked at the AG from California’s opinion on that. And so, there will be some costs but the bottom line is this has become a huge industry, you mean, two to $300 billion industry where we’re just completely off to sell of our personal data. So I don’t know what it’s gonna cost. And obviously we don’t want to run business out of state. That’s not the intent of this at all. I mean, we’re obviously trying to recruit new businesses but there will be some costs.

Walke: The other argument about investment, doesn’t hold weight because they wanted to invest in Oklahoma, it’s because Oklahoma cost of living is cheap, land is cheap, et cetera. Or, they can go to New York, possibly means expensive, land’s expensive, et cetera, and they’d still have to comply with Oklahoma’s law. So whether they’re in New York or Oklahoma they’ve got to comply with our law if they’re gonna offer services here. So don’t try and say that it’s gonna dissuade investment from this state when, okay, well where else they gonna go? Doesn’t matter, they’re gonna have to comply with our laws if they’re offering services in the state. So, I haven’t found a single argument about the cost of this bill that is justifying. I’m not saying it’s not gonna cost money. It is. But my point is, is that you’ve already received such a high benefit, I’m okay with some paying that cost.

Zach Oubre:  We’d like to thank state representatives Walke and West for their time, and talking about House Bill 1602 today. At McAfee & Taft, we will continue to track this legislation as it moves through the state legislative process, and keep you, our clients, updated as to any changes and its status and its wording. And in the upcoming weeks, please watch out for continuous updates on this bill as well as other cybersecurity and data privacy matters and our continuing Q & A series about what you should know about data privacy.

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This Insider Q&A has been provided for information of clients and friends of McAfee & Taft A Professional Corporation. It does not provide legal advice, and it is not intended to create a lawyer-client relationship. Readers should not act upon the information in this Q&A without seeking professional counsel.