It’s been a particularly busy year in the statehouses. All 50 state legislatures convened in 2019 with nine still in session by mid-July. Eight of those meet year round, and California will adjourn on September 13.
So how has this year shaped up?
By mid-July, state lawmakers had filed more than 156,572 bills, with approximately 35,254 enacted.
While the number of introduced bills is up this year, particularly given the trend toward pushing omnibus or “train” bills that pack multiple laws into one piece of legislation - a deluge of bills is typical the first session after an election.
It’s also occurs during odd years, when all 50 state legislatures convene. Montana, Nevada, North Dakota and Texas lawmakers do not meet in regular sessions during even years.
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What were the noteworthy issues?
Education and healthcare funding – always states’ two largest annual expenditures – occupied much of lawmakers’ time this year with many states addressing college tuition issues and still dealing with opioid addiction. After four years of increasing legislative focus, the number of bills dedicated to fighting the opioid epidemic declined this year, but the amount of money allocated to this continuing emergency will continue to climb.
Adjusting to the federal Tax Cuts and Job Act of 2017 remained a focus of legislation in many states this year, with federal deregulation and shifts in federal contributions to state revenues among the concerns. The nation’s immigration debate prompted some legislatures to ponder “sanctuary cities” and verify legislation.
Meanwhile, Congressional inaction on much hoped for infrastructure means many states will wait until at least next year to launch transportation and roadbuilding initiatives.
Technology-related bills – including autonomous vehicles, artificial intelligence, drones and 5G technologies – were heard in every legislature while workplace issues, including occupational licensing reform, ‘Fair Work’ and ‘Workforce Ready’ bills, gained traction.
Among other issues discussed in statehouses in 2019: Redistricting/census, tax-free women’s hygiene products, population change, tax-free text messages, sexual harassment, criminal justice reform, disaster preparation, foster care, police accountability measures and affordable housing.
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The 12 issues mentioned below were among those most commonly addressed by state lawmakers across multiple states by mid 2019.
1.) Budget solvency: Passing a budget is the only bill actually required of lawmakers, and it’s what they spend most of their time doing when in session.
A decade ago, finding the money to balance the state budget was an annual – or, in 19 state’s cases, a biennial – crisis for lawmakers as revenues routinely fell short of projections in the wake of the 2007 housing collapse and ensuing recession.
This year? Not so much.
States are uniformly reporting stable revenues and budget decisions are no longer being made in crisis mode. According to a January National Conference of State Legislature’s [NCSL] budget survey of legislative fiscal offices, 34 of the 48 states that responded expected Fiscal Year 2020 revenues to meet, if not exceed, forecasts.
In addition to an improving economy, the primary reason for the budget relief is the federal Tax Cuts & Jobs Act of 2017 [TCJA], the largest overhaul of the nation’s tax code since 1986.
While the bill reduced the federal corporate income tax from 35 to 21 percent, it did not affect state corporate and individual income tax rates. Depending how federal and state tax codes were reconciled – or “piggybacked” – after adoption of the TCJA, income tax collections in many states actually increased because some savings in federal taxes were taxed as income.
According to NCSL’s “State Tax Actions” report, tax changes made in all 50 states and the District of Columbia in 2018 resulted in a net revenue increase of $1.3 billion, a 0.1 percent of total tax collections in 2017.
In addition, factors such as fee increases, revenue adjustment accelerations and tax-compliance initiatives provided state budgets with $867.3 million in new revenues.
With the $1.3 billion tax revenue increase and an $847.1 million hike in total state sales tax collections, state revenues overall increased in 2018 by more than $3 billion, making life easier for many state lawmakers in 2019 as they put together FY 2020 budgets.
FY 2020 began in 46 states on July 1, 2019. New York's fiscal year began on April 1, Texas begins its fiscal year on Sept. 1 and Alabama and Michigan begin on Oct. 1.
2.) Abortion: By late June, more than 1,070 abortion-related bills had been introduced in state legislatures across the country with bills filed by conservative lawmakers seeking to restrict access to the procedure or ban it altogether the most significant trend.
A wave of prohibitory legislation designed to test the legal standing of 1973’s Roe v Wade decision was expected in 2019. But the trend was already well-established.
According to FiscalNote, more than 1,050 abortion-related bills, measures and resolutions were introduced in state legislatures nationwide in 2017, with 19 states enacting 63 restrictions on abortion – the most since 2013. That’s about the same as in 2016, when state lawmakers submitted at least 1,025 abortion-related proposals.
The most notable difference in 2019 is the adoption of Alabama’s law that bans abortion in virtually all cases and imposes criminal liabilities on doctors who perform the procedure, up to life in prison.
The law is purposely designed to evoke legal challenges, and to be “the case” that eventually goes before the Supreme Court in overturning Roe v Wade.
In 2019, legislation prohibiting abortion after six weeks was introduced in 11 states. Tennessee and South Carolina rejected those bills.
Also thus far this year, “heartbeat” bills that ban abortion if a heartbeat is detected, were proposed in at least 20 states – including Florida, Illinois, New York, South Carolina, Tennessee, West Virginia, Texas, Maryland and Minnesota – and approved in Georgia, Ohio, Kentucky, Mississippi and Missouri.
In late May, Louisiana’s Democrat Gov. John Bel Edwards signed a 'heartbeat” bill passed by the legislature.
Ohio’s “heartbeat” bill goes into effect on July 1. Missouri's law is enacted on August 28. Alabama's total ban becomes law in November, and Georgia's on Jan. 1.
However, all face legal challenges. The Kentucky and Mississippi laws have been blocked by federal judges, and the Ohio and Georgia laws are being challenged in court.
Meanwhile, lawmakers in at least 10 states introduced legislation protecting women’s right to “reproductive choice.”
New York passed a law to protect women's access to abortion right in January on the 46th anniversary of Roe v. Wade. The law protects doctors and medical professionals who perform abortions from criminal prosecution.
Vermont lawmakers adopted a bill declaring “the freedom of reproductive choice" is a “fundamental right,” prohibiting “public entities from interfering with or restricting the right of an individual to terminate the individual's pregnancy."
Also in 2019, bills that would protect abortion rights were introduced in Oregon, Indiana, Illinois, Missouri, New Mexico, Nevada, Rhode Island and Texas.
3.) Voting/Elections: Thus far in 2019, more than 800 bills have been submitted in state legislatures across the nation that expand or restrict access to the polls. Those geared to increasing voter accessibility were a significant majority – a reversal of previous years’ trends, aided by Democratic victories at the state level in 2018’s elections.
According to the Brennan Center for Justice, by early June 2019, 45 states had introduced at least 647 bills to expand voting access, compared to 28 states that had considered at least 82 bills to restrict access.
Of the states that adopted “pro-voter packages,” which include restoration of rights for felons, absentee ballot “cures” and easier voter registration initiatives, New York lawmakers approved the most sweeping revisions.
New York legislators this year expanded early voting, created a process for 16- and 17-year-olds to preregister to vote once they turn 18, and enacted voter registration “portability.” New York also consolidated state and federal primary dates and required that military voters receive ballots further in advance.
New York lawmakers also passed bills that will present voters with proposed constitutional amendments to permit same-day registration.
Connecticut is also considering preregistration for 16- and 17-year-olds, while Delaware are Minnesota were among states considering joining the 18 states that now allow same-day registration.
Automatic voter registration, which allows citizens to register to vote when interacting with state agencies, such as departments of motor vehicles, have been adopted by 15 states since Oregon became the first to do so in 2015. Maine, New Mexico, New York, Colorado, Connecticut, Minnesota, and New Hampshire lawmakers either have, or are expected to, adopt similar laws this year.
“No excuse” absentee voting laws – which would not require a qualification to justify receiving an absentee ballot, such as being out of town – were introduced in at least six states: Connecticut , Delaware, Georgia, New Hampshire, Nevada, and Virginia.
Early voting revisions expanding access were considered in Delaware and Nevada while restoration of felons’ voting rights – part of a broader criminal justice reform effort – were considered in at least eight states. Several, including Colorado, Connecticut, California and Minnesota considered allowing felons to vote upon release, instead of after completing probation/parole. Efforts to do so in Iowa and Tennessee fell short.
Florida voters overwhelmingly passed a ballot measure in November to restore voting rights to former felons upon completion of parole/probation, but the state lawmakers imposed a requirement that felons could vote only after paying court fines, fees and restitution, sparking anger and threats of lawsuits.
On the other side of the slate, more than 20 bills in about a dozen states attempted to restrict how civic groups can assist voters in registering, applying to vote absentee, or casting a ballot. Tennessee, Arizona, Texas, and Missouri lawmakers all passed such bills this years.
In Arizona, lawmakers enacted into law a bill that extends voter ID requirements to early voting and restricts access to emergency early/absentee voting.
Arizona, California, Florida, Georgia, Kansas and Virginia were among states that moved bills that require election officials to notify and/or permit voters to “cure” deficiencies in absentee ballots, absentee ballot applications, or voter registration applications this year.
Meanwhile, more than 40 states pondered measures upgrading equipment and elections security, although many states await federal assistance from Congress in protecting election integrity.
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4.) Remote Sales Tax: In April, New Mexico became the latest of 35 states to adjust its sales tax laws in the wake of the landmark June 2018 U.S. Supreme Court ruling in South Dakota v. Wayfair, which allows states to compel out-of-state remote sellers to collect and remit sales taxes.
Through late June, at least 360 bills across all 50 states had been introduced addressing remote sales tax collection and the Wayfair ruling. The only state to not impose any changes to its remote sales tax collection programs this year was Florida, where a proposed bill to do so – Senate Bill 1112 – died in committee.
States that did not have “clear authority” in state statutes to require remote sellers to collect tax needed to establish that before adopting rules and regulations in how they would proceed.
Of course, not all states adopted the same rules and regulations for remote sales tax collections and some laws could be subject to litigation if perceived to vary from the Supreme Court’s suggestion to include features in South Dakota’s upheld law.
South Dakota’s law excludes small vendors with limited business in the state from having to collect taxes; prohibits “retroactive” sales tax collection; and adheres to uniform rules contained in the Streamlined Sales & Use Tax Agreement [SSUTA] to make it easier for sellers to comply.
The SSUTA simplifies the registration process for businesses that operate in multiple states and includes common sales tax-related definitions and rules, uniform rate structures, as a way to reduce burdens on smaller remote sellers. The SSUTA also exempts smaller remote sellers from tax collection responsibilities and provides remote sellers free tax software.
There are 24 full-member SSUTA states. The top six sales tax collection states by population – California, Texas, Florida, New York, Illinois, Pennsylvania – are not members.
Among variations in remote sales collection is at least 13 states in 2019 that placed responsibility for collecting and remitting sales taxes on “marketplace facilitators” on behalf of third-party sellers.
5.) Marijuana: There were more than 1,560 bills introduced in state legislatures by mid 2019 related to adopting new laws to legalize marijuana for adults, addressing medical marijuana programs, and/or decriminalizing use and possession.
Going into 2019, 10 states and the District of Columbia had legalized marijuana for adult recreational use, 29 states, D.C., Guam and Puerto Rico, had legalized medical marijuana while 46 states have legalized access to some low-THC cannabis products.
In 2018, Vermont became the first state to legalize marijuana legislatively (as opposed to by ballot initiative). In 2019, recreational marijuana bills were introduced in 24 states and Guam.
Only Illinois and Guam had adopted measures that will regulate recreational marijuana for adult use the same as alcohol.
New Jersey was expected to be the first to do so by legislative action in 2019 but in early June, despite growing likelihood that legalization will happen this year, lawmakers were still working on the bill.
Full adult legalization bills are still alive to varying degrees in Connecticut, New Hampshire, New York, and Rhode Island while legislation could also still move in Wisconsin and, perhaps, in Delaware before lawmakers there adjourn on June 30.
Bills to present adult recreational marijuana legalization to voters as a constitutional amendment were introduced in at least four states – Florida, Louisiana, Maryland, Minnesota and Texas. All failed to gain traction.
Many states that have legal recreational and medical marijuana tweaked or revised rules and regulations this year. Among the most significant were Florida lawmakers, responding to a demand by newly elected Republican Gov. Ron DeSantis, legalizing smokable marijuana in its rapidly growing medical marijuana program.
6.) E-Scooters: At least 40 states considered approximately 180 bills related to electric scooters in 2019, with many trying to define what, exactly, they are: motor vehicle, bicycle, or something in between? And then regulate whether they can be operated on streets or sidewalks and at what speed limits.
This is the type of issue that was not anticipated two years ago, but suddenly became a pressing concern as electric scooters evolved from being a novelty item to a very significant presence on streets, especially in urban areas.
A survey by Populus, a transportation-data analysis firm of 7,000 people across 10 U.S. markets showed 3.6 percent said they’d used an e-scooter the last year. A “remarkably large” percentage, it said.
While much of the first wave of legislation regarding e-scooters is at the local level, state lawmakers are being asked to provide regulatory guidance.
This year, Delaware banned motorized scooters on public streets, and New Jersey limited their use to people with mobility-related disabilities. Massachusetts passed a bill that requires “motorized scooters” to have brake lights and turn signals.
Most states, however, are still trying to define e-scooters in statute. Before this year, only 10 states had statutorily defined an electric or motorized scooter. By early June, at least 23 states and the District of Columbia had introduced bills defining e-scooters.
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7.) Medicaid: Since Kentucky adopted a work requirement for able-bodied adults to be eligible for Medicaid last year, at least 14 states – 10 in 2019 – have passed similar bills seeking a waiver from the federal Centers for Medicare & Medicaid Services [CMS] to impose the obligation.
There are now 17 states that have adopted work eligibility measures although several – such as Arizona, Michigan, Ohio, and Utah – have not implemented them, and at least 10 are awaiting approval from the CMS.
Meanwhile, the seminal Kentucky law has been “set aside” by a federal judge and remains in legal limbo pending an eventual ruling. The outcome in this case could spur or stymie similar proposals in other states.
Work-requirement bills were among the most notable bills pondered by state lawmakers in 2019, but represent just a fraction of the 4,600 Medicaid-related introduced by late June across the country.
The trend in seeking Section 1115 waivers to better integrate behavioral health and primary care services into Medicaid programs in ways that vary from strict adherence to CMS policy continued this year, and is likely to remain the most frequent Medicaid-related legislation introduced and adopted in the foreseeable future.
Excluding federal matching funds, Medicaid consumes almost 20 percent of state spending across the nation. It is the largest expenditure in state budgets after education. Overall Medicaid spending is projected to grow by 4.8 percent this year.
With Medicaid expansion under the Affordable Care Act [ACA] giving states the option to expand their programs, 42 states have done so since 2014.
It would have been 43 – and could still possibly be, depending how “expansion” is defined – but Montana voters in November 2018 agreed to limit expansion, becoming the first to do so at the ballot box. Montana expanded Medicaid in 2015, but voters opted not to extend the existing program once it expired on June 30, 2019.
Instead, in April, Montana lawmakers adopted a bill that continues the state’s expansion program until 2025, with several significant changes from the 2015 plan, including seeking a Section 1115 waiver to add a work requirement as a condition of eligibility and increasing the premiums for many beneficiaries.
With the bill’s enactment, Montana joined Alabama, Kansas, Mississippi, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and Virginia in seeking the CMS waiver in 2019.
Five states expanded Medicaid this year, or will do so in 2020, as a result of actions in previous years. Four did so by ballot – Idaho, Nebraska and Utah voters agreed in 2018; Maine voters in 2017 – and one through legislation last year, Virginia.
The only state legislature to consider expanding Medicaid under the ACA this year was Kansas, where the measure failed to meet a 60-percent approval requirement by one vote in the state senate.
8.) Prescription drug ‘importation’ plans: In 2018, Vermont became the first state to adopt a program for state agencies to import prescription drugs, primarily from Canada. Vermont estimates the state’s private health plan enrollees would save approximately $1 million to $5 million a year.
This year, similar programs were adopted in Colorado and Florida – which actually adopted two importing plans, one specifically for Canada and another for exports from elsewhere. By early June, lawmakers in 16 states had considered at least 28 drug import bills.
The plans, however, cannot be implemented without federal approval, and also face uncertain legal status under Canadian law. While President Trump has voiced support for state prescription drug importation programs, Health & Human Services Secretary Alex Azar, who must approve them, is not an enthusiastic supporter.
Florida’s drug import bills could be precursors of future bills to come nationwide if it receives federal and Canadian approval.
The bill adopted by Florida lawmakers authorizes the state to create three prescription drug importation programs and secure federal authorization for them by July 2020:
* The Canadian Prescription Drug Importation Program managed by the state’s Agency for Health Care Administration [AHCA];
* The International Prescription Drug Importation Program managed by the Department of Business and Professional Regulation [DBPR];
* A pilot program run by the Florida Department of Health and DBPR.
Among other states that considered – and could still adopt in some cases – drug import bills are Oregon, Utah, West Virginia, Indiana, Illinois, Oklahoma, Minnesota, and Maryland.
9.) ‘Red Flag’ laws: Lawmakers across all 50 states and in the territories had introduced 4,360 firearms-related bills through late June with about 490 classified as “gun control” and more than 680 in the realm of “gun rights,” a possible indication that gun rights advocates, after a decade-plus of success in loosening firearm laws, are attempting to entrench those gains against an anticipated wave of gun control legislation in state houses and from Congress.
The sustained nationwide trend in state lawmakers expanding gun-rights may have ended in the wake of the 2018 Valentine’s Day school shooting in Parkland, Florida, which fostered a crush of gun control bills last year.
That pattern continued this year, particularly in states where Democrats either gained majority or boosted majorities.
Yet there were few significant legislative victories or defeats for advocates on either side of the gun debate. For instance, there were 48 bills seeking to restrict or ban “assault weapons” introduced in at least a dozen states, but none passed.
What did gain traction in 2019 were so-called “red flag” laws, which allow authorities to temporarily remove guns from those believed to be at high risk of inflicting damage to themselves or others. More than 220 had been introduced through late June.
10.) Sports Gambling: After the May 2018 Supreme Court ruling struck down a 1992 federal law that banned commercial sports betting in most states, nine states opened their doors by year’s end to legal sports wagering with legislation, or by incorporating it as an already regulated activity in adopted budgets.
By late June, at least 220 bills related to sports wagering had been introduced. That was among the 600 pieces of 2019 legislation that addresses gambling in all its forms in 29 states.
Iowa, Indiana, Tennessee, and Montana all legalized sports wagering in May, while Arkansas voters legalized it in November by ballot.
Bills in Kentucky and Maryland stalled, while the nation’s three most populous states – California, Texas, Florida – did not advance bills to legalize sports betting this year as it would require amending state constitutions and face opposition from casino-operating Native American tribes that want to control sports gaming in these states.
11.) Taxation of Services: As of early June, two dozen “taxation of services” bills had been introduced in 12 states – California, Connecticut, Florida, Minnesota, Montana, Nebraska, South Carolina, Texas, Utah, Virginia, Washington, and Wyoming – but not one had passed.
Introducing bills seeking to increase sales taxes and other surcharges on services is a growing trend – as is, apparently, ultimately not adopting them.
Hawaii, New Mexico and South Dakota already tax services broadly, but few states have successfully adopted bills to replicate their taxation schemes. In fact, Florida, Massachusetts, Michigan, and Minnesota have actually scaled back sales and use taxes on services.
A California bill to apply sales taxes on services such as those provided by lawyers, consultants and accountants remains alive but has not moved beyond “draft” stage.
In Connecticut, Democratic Gov. Ned Lamont has called for expanding the sales tax base to include services such as building maintenance, laundry services, legal and accounting advice. The initiative was not enthusiastically received by the legislature.
Governors in Utah and Rhode Island also called for bills to modernize tax codes to include sales taxes on certain services that did not result in adopted legislation this year – but the issue is certain to be discussed again next year.
Massachusetts has formed a working group to review the state’s tax code with taxation of services among possibilities considered, and Nebraska lawmakers approved resolutions to study broadening sales tax levies on certain services.
12.) The Internet of things: More than 1,000 bills and resolutions related to cyber security, net neutrality and online privacy were introduced in state legislatures nationwide in 2019 as Congressional inaction continues to force states to take the lead in protecting online consumers and businesses from data breaches and cybercrime, and in regulating internet service providers (ISPs).
Cybersecurity: More than 330 bills or resolutions related to cybersecurity were introduced in at least 36 states and Puerto Rico through late May. State lawmakers are addressing demands from constituents to adopt and implement security practices and policies to protect sensitive data collected by state agencies, businesses and ISPs.
Cybersecurity legislation generally proposed more funding for improved security measures, establishing oversight task forces, improved government security practices, enhanced training, and increased penalties for criminal acts. This slate of legislation also includes shoring up the security of connected devices, establishing cybersecurity insurance for data and bolstering elections security.
Bills that can be defined as cybersecurity-related include a range of topics, from cybersecurity insurance laws and requirements, to exemptions from public disclosure laws for “critical infrastructure” such as utilities and state/school agencies, election safeguards, emergency response/preparation, reorganizing state agencies, or creating new ones to focus on cybersecurity, interconnected devices, Blockchain technologies, and criminal/civil penalties for “phishing.”
At least 18 bills in these categories were introduced this year in New Jersey and Texas, 15 in Massachusetts, 10 in Maryland, and nine in Florida.
Lawmakers in Alabama, Connecticut, Nevada, Massachusetts, and New Hampshire saw bills related to cybersecurity insurance, with Kansas authoring its state Board of Regents to purchase cybersecurity insurance, and Mississippi enacting an Insurance Data Security Law that requires insurance licensees to develop, implement and maintain information security programs.
Bills providing exemptions to public disclosure laws for state agencies and utilities when discussing security measures were considered in Florida, Mississippi, North Dakota, New Hampshire, Texas and Washington.
Alabama, California, Idaho, Iowa, Indiana, South Carolina, Texas, and Virginia lawmakers reviewed proposals that address cybersecurity concerns with their state elections systems – although these bills reflect just a fraction of overall legislations regarding elections and elections technology pondered this year.
Lawmakers in at least a dozen states saw bills that address cybersecurity emergency response and preparation. Arkansas enacted a bill that gives the governor authority to order the militia into service to address cybersecurity threats and vulnerabilities.
Montana passed a bill that allows the state’s National Guard to engage in cyber security operations, and Ohio lawmakers are considering a proposal to create the Civilian Cyber Security Reserve Forces.
California, Connecticut, Illinois, Massachusetts, Maryland, Minnesota, New Jersey, New York, Virginia, and West Virginia are among states where bills seeking to reorganize existing state agencies, or create new ones to direct cybersecurity policy, were introduced this year.
Also of interest is a bill to provide levy bonding authority for cybersecurity was introduced in Nebraska, while two pending New Jersey bills would require the state’s Economic Development Authority to offer low-interest loans to help businesses upgrade information technology systems. Oklahoma saw two bills seeking to create tax credits for cybersecurity employees.
Net Neutrality: With the June 2018 implementation of the Federal Communications Commission Restoring Internet Freedom Order [RIFO], and transparency rule amendments overturning net neutrality requirements on ISPs, state legislators nationwide introduced nearly 300 bills to require net neutrality legislation at the state level.
Through late-May, 59 bills had been adopted in 29 states imposing net neutrality to varying degrees that require all data traffic be treated indiscriminately, and restricting ISPs from blocking, slowing down, or speeding delivery of online content.
Adopted and proposed bills address state policy, mobile ISPs, cable television providers, insurance regulations, and a range of resolutions asking Congress to overturn RIFO.
Bills of note include the Illinois Broadband Procurement and Disclosure Act, New Jersey Net Neutrality Act, the South Carolina Net Neutrality Preservation Act, and Tennessee Neutrality & Internet Consumer Protection Act.
Online Privacy: At least 14 states and the District of Columbia considered more than 425 measures related to online privacy in 2019, seeking to regulate and restrict how ISPs can collect or share consumer data.
These are bills related to digital privacy policies, including online book downloads, reader browsing information, personal information held by ISPs, online marketing directed at minors, employee email monitoring, and requiring administrative, technical, and physical safeguards to protect “personally identifiable information.”
Notable bills include enhancements to ‘The California Consumer Privacy Act of 2018’ and Vermont legislation that requires “data brokers” register with the Secretary of State.
Among bills that extended digital protections to minors is California's ‘Privacy Rights for California Minors in the Digital World Act,’ or the “eraser act,” and Delaware legislation also called the "eraser" bill, that permits minors to remove, or to request and obtain removal of, content or information posted on an website, online service, online application, or mobile application.
Arizona, Delaware, Missouri, and California were among states that addressed e-reader privacy this year. Of note is the proposed California Reader Privacy Act.
California's ‘Online Privacy Protection Act’ is also a potentially landmark legislative package that addresses privacy policies and practices for websites and online services. Connecticut, Delaware, Nevada, and Oregon also considered comprehensive online privacy bills.
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