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The Technology 202: Ballot propositions in California and other states could change the tech industry

Tech companies aren’t just watching the outcome of the presidential election. Several high-profile state ballot initiatives could have a major impact on Silicon Valley. 

Across the country, voters in some states will weigh in on initiatives that could shape the future of gig workers’ rights, privacy and even how devices are repaired. 

States have emerged as a major driver of tech regulation in the absence of action from Washington. 

And it’s likely that outcomes of some state measures could shape the debate at the federal level about how digital privacy should be regulated, or whether Uber and Lyft should have to make drivers employees instead of contractors. 

Yet tech trade groups would prefer these policies be developed through the traditional legislative process. 

“I think these are highly complex issues that deserve the attention that the legislative process provides,” said Tom Foulkes, the state program director at BSA. “Whether you agree or not or think that the legislative process in America is flawed, it does give everyone a say in the process.”

Here are the key ballot initiatives that we’ll be tracking during this critical week:

Uber and other gig companies have spent a historic amount to knock back a California employment law. 

One of the most closely watched efforts is California's App-Based Drivers as Contractors and Labor Policies Initiative, which would ensure Uber and Lyft can classify drivers as independent contractors under California law. Uber, Lyft and Instacart have been pulling from a $200 million fund to support the measure, as well as using their own apps to encourage customers to vote yes on the measure, known as Proposition 22. 

The initiative would provide contractors with some limited benefits, but not the full suite of wage and job protections typically granted to employees. For instance, companies would guarantee drivers 120 percent of minimum wage for “engaged time,” meaning time giving rides or en route, rather than the full time drivers are logged into a specific app. 

Proposition 22 could bring a forceful conclusion to the battles playing out in court over the employment status of ride-hailing drivers. Uber and Lyft have been fighting legal efforts to force them to classify their drivers as full-time employees after a new law took effect in the state that aimed to correct challenges gig workers face in earning fair wages and obtaining benefits. The initiative's outcome could also influence how other states regulate gig economy companies. Democratic politicians, including Joe Biden, are encouraging California residents to vote against the proposition. 

Read more on the initiative in this helpful guide from our colleague Faiz Siddiqui. 

Privacy advocates are split over another California initiative to reshape the state's privacy protections. 

The California Privacy Rights Act of 2020 would overhaul the state's privacy protections and change how they're enforced. It's being pushed by one of the authors of California's landmark state privacy law, which took effect earlier this year and has shown some early shortcomings. 

The ballot proposition could create a new agency tasked with enforcing privacy law, initially funded with $10 million to address data abuse. It would also add new limits on how businesses can use “sensitive personal information” — such as employees' race, sexuality and precise location. 

Some groups, including the ACLU, have raised concerns that the proposition would undermine some rights under existing California law. They say the initiative could result in Californians paying for privacy because of a new exception allowing companies to charge more if people opt out of allowing them to sell their data.

No one should be put in the position of choosing between the necessities of survival and their privacy,” the ACLU wrote in a recent blog post. “Privacy is a right, not a luxury for people who can afford it.”

For more on this measure, read our colleague Geoffrey Fowler's reporting for The Technology 202 earlier this year. 

An initiative in Michigan could shape law enforcement's access to digital data. 

Michigan voters will weigh in on whether law enforcement should have to obtain a search warrant to access their electronic data or communications. The ballot proposal could more sharply define residents' privacy protections, as state legislatures and the federal court system have been relatively slow to move on the controversial issue of law enforcement access to data.  

“As it is now, our lawmakers are forced to respond on a piecemeal basis every time a new technology-driven concern arises — and those concerns keep emerging because technology is advancing so rapidly,” the ACLU's Merissa Kovach recently wrote in the Detroit Free Press. “It is like a perpetual game of whack-a-mole.” 

A Massachusetts measure could influence the future of car repairs. 

A measure known as Question 1 would update existing auto-repair law to ensure that independent repair shops have access to wireless data increasingly collected by cars. In the absence of federal law addressing smart cars, it could set a new standard for how such vehicles operate.

“At the core of the issue is the not-insignificant question of what expanded access to wireless car data might look like and how secure that is,” Lauren Goode recently wrote in Wired. “It’s not just a question of who can repair a car and access the data, but who owns the data in the first place.”

Automakers have been urging Massachusetts residents to vote "no" on the issue, warning that the measure could put sensitive data at greater risk. 

The measure is part of a broader debate over the “right to repair,” or a movement to ensure people have access to the data and tools they need to repair their own devices or cars. 

Voters in Chicago and Denver will get a say on public Internet funding.

A referendum in Chicago would advise the city to ensure all community areas have access to broadband if it passes. 

The ballot initiative illustrates the ways the coronavirus pandemic has spotlighted Internet access issues across the country, says Francella Ochillo, executive director at Next Century Cities, a nonprofit group supporting cities seeking solutions for affordable Internet. 

It's not that the issue wasn't there, Ochillo told Tonya Riley in an interview. I think that covid-19 just really put an accelerant on something that I don't think would have had the same gravitas. 

One in five Chicago residents under 18 lack access to broadband, a problem largely concentrated in Black and Latino neighborhoods.  During the pandemic, that disparity in access has had wide-ranging consequences, from preventing students from accessing online education to disparities in telehealth. If the ballot initiative passes, it could be easier for the city council to allocate funds increasing access.

Denver voters will decide whether they want to opt out of a 2005 state law prohibiting the use of tax dollars to build a municipal Internet. Similar action by other cities in Colorado has helped bring down Internet prices and increase connectivity.

Both initiatives are just first steps to providing better Internet access to communities. But if they pass, that sends a strong message to local officials that citizens are invested in the issue, Ochillo says.

Our top tabs

Trump allies have evaded Facebook penalties for misinformation in the months leading up to the election. 

Some of the accounts, including Donald Trump Jr.'s page, were protected to avoid allegations of anti-conservative bias, current and former Facebook employees told Isaac Stanley-Becker and Elizabeth Dwoskin.

In one instance, Facebook removed a strike against Trump Jr. for a fact-check that would have made him a repeat offender, two former employees told Isaac and Elizabeth. Facebook spokeswoman Andrea Vallone did not dispute that, saying the company is “responsible for how we apply enforcement, and as a matter of diligence, we will not apply a penalty in rare cases when the rating was not appropriate or warranted under the program’s established guidelines.”

The softened approach also applies to PACs and other groups supporting Trump, a Washington Post analysis of more than a dozen right-leaning pages showed. Despite meeting Facebook's repeat offender policy, the pages were still purchasing ads and attracting significant engagement. The company's repeat offender policy limits the distribution of offenders' content and revokes advertising privileges. 

The policies appear to undercut Facebook's fact-checking program, which relies on the judgment of independent third parties.

“I’m baffled by the policy,” said the head of one fact-checking organization that works with Facebook. “We repeatedly flag offenders that nevertheless seem to prosper and continue to do ads.”

Facebook defended its policies.

“We don’t disclose the details of these thresholds publicly for very real concerns about gaming the system, but we do send notifications to groups, pages, accounts and advertisers when they’ve received a strike and are receiving reduced distribution, and when they are a repeat offender, Vallone said.

Wikipedia is locking down some election-related content to defend against misinformation.

Bad actors could use the online encyclopedia as a conduit for spreading disinformation on other services, says Ryan Merkley, chief of staff at the Wikimedia Foundation, the nonprofit group behind the online encyclopedia.

Wikipedia doesn't have the chat or posting features that allows content to go viral, but for bad actors it is very valuable to get incorrect information onto what is one of the most trusted sites on the Web right now, Merkley said in an interview with Tonya.

That trusted information gets pulled automatically into information services such as Alexa and Google information boxes, giving actors a way to spread what appears to be trusted information to other platforms. Screenshots of misinformation could also lend legitimacy to bogus posts on other platforms, Merkley said.

If it's wrong on our platform, it could potentially be wrong everywhere, he says.

Like Twitter, Google and Facebook, Wikipedia will coordinate with U.S. intelligence agencies and other tech companies on Election Day to share threats.

The site's largely volunteer-run community has already locked down some pages including “2020 election” to prevent edits from new accounts that bad actors might use to swarm the site. Moderators have used similar tools to help prevent misleading coronavirus information.

So far Wikimedia hasn't told editors which pages to lock, but it could step in if there's risk of imminent harm, Merkley said.

Both start-ups and large companies are pushing back against Trump's new visa restrictions.

The salary floor for the new workers hamstrings the ability of emerging tech companies to recruit new talent, founders and investors tell Heather Somerville and Michelle Hackman at the Wall Street Journal

“I just honestly don’t see how we can hire other people who need H-1B sponsorship,” said Marcie Black, co-founder and chief executive of Advanced Silicon Group. Nine out of 10 applicants for her Massachusetts-based medical technology start-up are foreign workers.

The rules, which set entry-level employee salaries as high as $208,000, are meant to prevent “abuse” of the foreign worker programs, the Labor Department says. But instead of benefiting American workers, founders say the restrictions could push them to establish hubs in Eastern Europe and Canada.

Big Tech companies have also blasted the policies for hurting their access to talent.

Twitter, Facebook, Amazon, Google and more than two dozen other tech companies and industry groups recently filed a brief in support of U.S. Chamber of Commerce legal challenge seeking an injunction against the rules.

Rant and rave

Even SNL came for social media companies the weekend before the election. From Weekend Update:

Halloween may be over but the giant skeleton keeps on:

Trump tracker

A federal judge halted the Trump administration's TikTok ban.

The order was set to take effect Nov. 12, but District Judge Wendy Beetlestone's ruling stops the Commerce Department from banning the app from hosting data within the United States and delivering content to users, Rachel Lerman reports.

The White House contends that the Chinese government could force the app to share U.S. user data with the Chinese government.

In ruling on a suit brought by three TikTok creators, Beetlestone cited the government's decision to phrase the threat as hypothetical in her ruling.

The Commerce Department said Sunday it will comply with the injunction but intends to defend the implementation of the executive order banning the Chinese-owned social media app, David Shepardson at Reuters reports.  

A separate suit that resulted in a preliminary injunction on the ban in September will have another hearing on Wednesday.


Zoom parties and Twitch streams: How people are spending election night virtually (Rachel Lerman and Heather Kelly)

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  • Uber releases its earnings Friday.

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