How state attorneys general are driving tech policy

State attorneys general (AGs), for better or worse, are increasingly important actors in tech policy. The internet is a greenfield regulatory opportunity, and in the tech policy realm, AGs are flexing their muscle on online privacy, net neutrality, and data security.

• Online privacy: AGs creating policy. Helped by expert litigation firms, the IL AG and others are now targeting Big Data companies such as Uber and Facebook over their privacy practices. CA’s new privacy law strengthens the ability of AGs and private litigants to sue.
• Net neutrality: AGs blocking policy. Republican AGs sued the Obama administration 46 times in eight years, challenging what they saw as federal overreach. Democratic AGs are already far ahead of that pace, having filed 35 suits against the Trump administration in its first year. Twenty-two Democrat AGs have sued the Federal Communications Commission (FCC) over the rollback of the FCC’s 2015 internet regulation, which restored bipartisan policy enshrined by Congress in 1996.
• Data security: AGs racing the Feds on policy. AGs from AL, CA, GA, ME, MA, NY, NC, and TX might claim to be more nimble than federal regulators, noting their speedy Equifax settlement while investigations by the Federal Trade Commission, the Consumer Financial Protection Bureau, and the Securities and Exchange Commission continue.

Some may delight in the success of the disruptive AG agenda, but the fact remains that we make federal policy and preempt states for good reasons: to ensure common rights and standards for all Americans, increase commerce and enterprise across the states by lessening friction and transaction costs, and use scarce regulatory resources prudently.

[Roslyn Layton is a visiting scholar at the American Enterprise Insitute and was a member of the Trump FCC transition team.]