Meghan Stoppel

Welcome to the second season of State AG Pulse. In this season, we will be releasing a new podcast episode every two weeks. In addition to providing a deep dive into those headlines that showcase the enormous power and broad authority of state attorneys general, we’ll be talking with new AGs about their transition into office and their priorities. Like last season, we’ll leverage our decades of experience to provide our listeners with insight and perspective to help business leaders better understand and successfully work with state AGs. Listen for new voices as co-chairs Bernie Nash and Lori Kalani share the host mic with other members of Cozen O’Connor’s State AG Group. So now let’s jump right in to this week’s episode.

Jerry Kilgore:

Welcome to episode  of season two, the Cozen O’Connor state attorney general podcast. I’m Jerry Kilgore:, a shareholder here at Cozen O’Connor, and I am thrilled to be hosting this last session. I’m also proud to be joined by my partner here at Cozen O’Connor, Chris Allen:. Great to have you with us, Chris.

Chris Allen:

Thanks, Jerry, thanks for having me. Great to be back.

Jerry Kilgore:

We’re also thrilled to have with us the attorney general of Indiana, who has really done it all. He’s been secretary of state for two terms, a congressman from Indiana, a general counsel at a private business and now he’s the attorney general of Indiana. We’re glad you’re with us, General.

AG Rokita:

Hey, Jerry. Great to be with you, and really appreciate the Cozen folks. They’re always trusted in this area, so happy to come on.

Jerry Kilgore:

Well, we appreciate that. And you’ve spent a lot of time during your first term battling the Biden administration. Do you want to talk briefly about that and why you’re doing that for the state of Indiana?

AG Rokita:

Oh, well, yeah, it’s kind of like drinking from a fire hose. We found ourselves, as attorneys general, kind of on the front lines of government overreach, particularly federal government overreach. If you think of the states as entities, but then also as citizens themselves, that’s what our job is under the Constitution, to protect the rights of the states in our form of government. There is a real brazen push these days just to have government do everything in our lives, and particularly all from Washington DC, at the same time while they not only take our liberties, but take our actual property, whether it’s in the form of confiscating our money or just regulations, which if you look at it in a certain way, are a tax themselves, because they drive up the cost of everything. Then when Washington throws a bunch of money, prints a bunch of money and throws it out there, you have a real mess in terms of inflation, so there’s some real pragmatic things that the attorneys general are doing these days in protection of states’ rights that also protect individual citizens.

Jerry Kilgore:

Well, we’ve seen over the past few years the power of states and the power particularly of states attorneys general, whether they go separately or together, and we’re going to talk about a couple of those issues today. I think Chris wanted to kick off and talk about privacy today and the things you all are doing in Indiana related to the privacy legislation and privacy as a whole around the nation.

Chris Allen:

Yeah. It goes kind of with what you’re talking about, General, and there is… Maybe privacy is the one area where the federal government hasn’t quite acted because, call it Congressional deadlock, call it FTC overreach that’s then been pushed back to by the states, but it really does appear that privacy particularly protecting consumer data, is something the states have really taken a leadership role on, both passing individual state laws establishing their own standards and also suing, either on their own or as part of multi states to protect consumers and protect their privacy from exploitation, from data breaches, from misuse of their data, or just from not understanding how their data’s being collected and who it’s being sold or transferred to.

And I just wanted to know from your perspective. Having seen it both as a lawmaker in Congress and now as more law enforcement as an AG, how do you view that trend? What is the states’ role? Should the states be leading on this? Is this something that lends itself to a state-by-state solution? Or is it something that really does need a more federal solution? I know I threw a lot of questions at you there, but it’s kind of just generally What’s your take on this issue? Because I think this really is something that touches on every industry and every consumer out there.

AG Rokita:

Yeah, that’s a great question, several questions. And you can look at it a couple different ways. If you look at it from a strict Constitution perspective, you can argue pretty easily that what a business, what a company can collect from a consumer is certainly not one of the enumerated powers under in our Constitution that the federal government can do. So that means that the authority to regulate such things is left to the states or the individuals. And then you can look at it from the idea that the states are supposed to be laboratories. And so that’s really the most liberty for a consumer, for an individual, is to be able to choose if they really have a hang-up on what kind of data can be collected from them, they can pick and choose what state to live in quite literally.

Here in Indiana, we just passed a data privacy bill. We did take the perspective that the states could do this. And by the way, I understand the companies’ perspective too, or maybe a lot of people’s besides companies’ perspective that, well, geez, that would be really nice to have a uniform law so we’re not, for those of us who operate in different states, we would just have one set of laws and that portends to having a federal government do it. I mean, I get the convenience, but we shouldn’t be tempted just for that. In the meantime, Indiana, like I said, came up with its own law, and it was modeled after the Virginia law where Jerry used to be attorney general. So it seemed to us to be a fairly business-friendly law, meaning not many regulations, not many restrictions. Our law gives a real long runway for both businesses and consumers to get used to understanding what’s going on, for us to see how this is playing out in other states, so our law doesn’t even go into effect until .

There might need to be some tweaks down the road because the consumer in Indiana after  is now going to have the right to get any data from a company that company has on the consumer, so long as it was data that was originally derived from that consumer. That leaves open a whole lot though. That leaves open all the third-party vendors and folks that have made an industry out of collecting data on us as consumers, and then selling it to companies so that they know where we go and buy things, the lawn mower from Lowe’s or what have you. Somehow, everyone gets that information.

Chris Allen:

Or even, I mean the Wall Street Journal I think had a story today that the intelligence agencies for the federal government were buying this and they’re building consumer profiles.

AG Rokita:

Yeah, put in our law some stronger protections against the federal government. That’s a very, very good idea.

Jerry Kilgore:

So what do you think the lead in is going to be? Do you develop regulations? Do you start hiring staff like privacy attorneys? Or what’s the goal or the plan in the attorney general’s office?

AG Rokita:

Well, thank you. Right now the first step, we’re starting to educate. We’re educating and we’re watching, so I’m not running out and hiring a bunch of staff. I’m not, since we have until , we’re starting a file for regulations. Right? But we’re not running out and pretending we know it all because we certainly don’t. We’re also watching other states. We’re seeing what goes right, what goes wrong. And we’re going to make a better mousetrap. And again, I think that’s part of the laboratory that you can use when you’re talking about state level regulation. So first of all, educating consumers on, hey, this is what the law does and this is what the law doesn’t do. I think consumers, what consumers, to me, want to know is what a company knows about you, and what they’re going to get under Indiana’s law, again, like I said, is simply what the company has about you that you gave them. And those are very different questions. That’s a very different search.

Where it gets really tricky is when it goes beyond Todd Rokita bought the lawn mower at Lowe’s to, oh, Todd Rokita’s political philosophy, or his voting record, or other things start getting into the mix. And then as you say, Chris, the federal government starts grabbing it too.

Chris Allen:

Yeah. And I wasn’t necessarily suggesting the state of Indiana versus the Central Intelligence Agency should be your next lawsuit. But you’ve been a leader on TikTok for example. I know y’all filed a lawsuit and I think you just recently amended your complaint. And it seems like whereas I think the allegations there, that that’s an agency of a foreign power, the question still comes down to what you were talking about. It’s What do consumers really know about how their data’s being collected and how it’s being used?

AG Rokita:

Right. That’s the thing. And over the next couple years, I think that needle’s really going to move. Consumers are going to be dumbfounded, like I am, when you realize what’s being collected on you. And ironically enough, I think that’s part of living in a free society. Right?

Jerry Kilgore:

General, you’ve served in Congress and you’ve served in various state offices. Given your experience in both, do you anticipate that the federal, that Congress will ever pass a more national privacy law, if you will?

AG Rokita:

I don’t know, Jerry. It just seems like everything that the federal government touches ends up in more bureaucracy, more bloat, and just little effectiveness. And I kind of cringed when you asked me that last question. Are you going to start staffing up, you going to start pumping out regulations? No. I mean, if the volume starts getting such, of course, we’re going to meet our statutory duties. But it’s not where my head’s at with this. My head is to empower consumers to be educated and take matters kind of into their own hands. The goal I think with the states is not to go and create a big bureaucracy around it initially. I’m hoping, and making an analogy to our better angels, that the industries learn how to better police themselves.

Jerry Kilgore:

Do you anticipate Indiana still participating in these multi-state privacy investigations when there are data breaches and things of that nature, even with the new law?

AG Rokita:

To your clients who are wondering about that, I think the facts will kind of dictate how that plays out. For example, Indiana has sued Google as part of a larger group of states originally. And we were offended by the practice of Google in terms of tracking individuals’ locations, a huge privacy issue. And then after we and the public and the world were told that they don’t do that, or they were turning it off, or you could turn it off, the fact of the matter was you really couldn’t. And so we stuck with the group, we ended up breaking from the group of states and settled with them individually, yielding a settlement amount that was double what the other states eventually got. That’s not a comment on the other states. That’s not a comment on us. It’s just we looked at the facts a little bit differently on that one, and took our own initiative. And Google was okay with it. They settled. Right? So that’s how that one ended.

Jerry Kilgore:

Was there anything specifically that went into that decision to break away from the states, any fact or any way the multistate was moving that Indiana wasn’t comfortable with that you thought you needed to be more aggressive or less aggressive there?

AG Rokita:

That’s a great question. You know me, Jerry. Chris, you’re getting to know me better. I’m not a patient man. So some of it was just how fast it was moving or not, or how I was comparing it to other multistates. I mean, quite honestly, I have multistates that I’ve inherited from earlier administrations that are still going on.

Jerry Kilgore:

That does bring up an issue about some of these multistates go on for five, six, some of them seven, eight years. And you have stated in public places that you don’t believe that should happen, that the states should get in and get out, and get what’s good for consumers.

AG Rokita:

Yeah. I think it’s fair to the defendant too, as long as you’re not playing games with me, I need enough time to get my discovery done, to have my questions answered and to make a decision. But this hemming and hawing and hanging on isn’t fair to anybody. You’re right, Jerry, it’s not fair to consumers. It’s also not fair to the company. So I don’t speak for Google. I don’t dare to speak for Google. I would hope though that they thought that as much as they were “stung”, I don’t know how much $ or $ million means to Google, but it means a lot to us, and that’s what we got. And I would think that they would at least see value in not litigating this for a decade.

Chris Allen:

Your staff in particular seems to understand that message. My experiences with your Indiana consumer protection AGs has all been no hiding the ball, this is our concern. Educate us about our concern. Our clients certainly like being able to hear, look, the office has an issue, but they’re inviting us to come talk to them. And if we take that opportunity, I think that’s only to our benefit. We’ve had a lot of success with your office that way, and I just thank you and your staff for that.

AG Rokita:

Yeah, no, thanks for the compliment, Chris. I’ll force them to watch this or listen to it, and then they’ll receive it too.

Chris Allen:

Not every state is like that. And you mentioned earlier the laboratories of democracy, and that you started off in a multistate, and then you broke away, and that your law is patterned after are Virginia law. And the theme I’m hearing here is that states have a lot to learn from each other in this area. Has that been something just either the collaborativeness or the innovation, has that been something that’s been interesting to you coming from Congress to the AG’s office?

AG Rokita:

Yeah, it has. And hey, look, I have brothers and sisters that are still up there in Congress. Individually, they’re mostly phenomenal individuals, quite honestly. And I mean that in a bipartisan way. They’re all type As. Right. So we all kind of get there under the same type of personality. But then we all get together in a system, and again, a lot by design, our founders didn’t want us passing laws on each other. The problem is, and this goes back to some of the other answers, is that we got, over the decades, Congress has gotten around that “problem”, by ceding authority, lawmaking authority to unelected people; bureaucrats, if you will. The federal government is not only the largest employer in Washington DC, it’s usually the largest employer in every state. And I think it’s going to be the states to bring this back into the podcast, they’re going to either succumb to that or try to correct it.

Chris Allen:

And it does create a really stark contrast because I mean, you’re elected, most of the attorneys general are elected. But at the same time, you’re the individual champions for your state’s sovereignty and like you said at the beginning of this, our system was set up as a collection of sovereign states with a federal government that’s supposed to answer a limited number of questions. But here you have you, as an elected state official, trying to enforce and uphold your state’s interests against, let’s just say it, unelected bureaucrats. And they may even have good intentions, but it seems very clear to me, at least, where the founders’ sympathies would’ve been. Government is supposed to be responsive to their people, not making decisions for their people.

AG Rokita:

Yeah. And some of these companies might whine and complain. Well, now I’ve got to deal with the  states, as I kind of mentioned earlier. Well, yeah, but here’s the other thing. You can get one of us on the phone. By and large, we’re going to return your phone call. I mean, I was a congressman for eight years. And the haters who listen to this are going to say, “Well, that was you.” But it wasn’t me. The bureaucrats wouldn’t return anyone’s phone call. I’m going to get your attention as attorney general if you’re a company, but at the same time, you’re going to have mine. And I think that’s perhaps that’s the best position to be in.

Chris Allen:

So what advice would you give a company that needs to get your attention? How should companies be thinking about state AGs, both just in general but also in comparison to their federal counterparts?

AG Rokita:

The culture in my office is that all emails and all phone calls get returned within  business hours, even if the answer is, “Hey, I don’t know the answer but I’m acknowledging this email.” And we take it pretty seriously, because my office has learned that I get out, that I get out of the office. And God help somebody if I have to hear how somebody’s email or phone call went unresponded to. But beyond that, advice, no matter what state you’re dealing with, is that just by virtue of the fact we’re smaller agencies, we’re smaller entities, you should be able to navigate that better. And then of course, and this is going to sound really self-dealing, but the fact is, Cozen is a firm that I see all the time. I know when Jerry, or Chris, or any of the others come up to me and have something to discuss, it’s real. I also know that the news could be good, bad, or ugly. But I know it’s correct information that I can go and rely on.

And because they have such a strong presence in my professional life, I think if you’re a company that does need help, look into just how close and how active either a law firm or government relations firm is, and if you have your own in-house folk, make sure they’re taking the extra steps, because it’s a huge pain, I get it, and there’s a lot of expense, I get it, but to attend these conferences, go to these things, do your outreach. Visit us in our states….

Jerry Kilgore:

There’s been a lot of articles and stories written about the animosity that exists between Democrats and Republicans nationally, and even among AGs. But I’ve noticed that your office works with the other side on a lot of cases opioids and other cases of national importance. Can you talk about the general view and the cooperation that goes on among AGs regardless of political party?

AG Rokita:

I think, Jerry, since you’ve been here, I think the AGs themselves have gotten more divided on more and more issues. But it’s in this consumer space and some others, where the bipartisanship still exists because protecting a consumer really shouldn’t be partisan, or there shouldn’t really be too much of a philosophical difference. Of course, there is a free marketplace versus socialism and where the consumer falls in those two theories, economic theories. But by and large, given our statutory duties, it’s in this consumer space where we, for better or worse if you’re a company, where we find a lot of “cooperation” across the aisle. I mean, I don’t know that Attorney General Kwame in Illinois, my neighbor, I don’t know if he and I would agree on what color the sky is. But we wrote a letter on right to repair, so there you go, it can happen.

Chris Allen:

I think it’s also, I’d hazard, a testament to your nimbleness as AGs too because you’re not a commission. Most of your offices are not bureaucracies. You’re able to react very quickly to your consumer complaints and your consumers’ interests. And you’re able to look at innovative business practices or business practices that may have flown under the radar, and all of a sudden really create public concerns. Opioids is a really great example. The federal government had tried for years to tackle that issue and it really wasn’t until y’all as the states banded together, Republicans and Democrats, to tackle that, that you really saw movement on that.

AG Rokita:

And I think you’re right. It’s just the matter of the fact. And the federal government’s just so big and lethargic. I see an opportunity for the states. I see an opportunity for individual liberty. And that’s kind of the theme of our administration.

Chris Allen:

Is that what made you come to the AG’s office from Congress?

AG Rokita:

Yeah. Well, I had a space for about three years in the private sector, which I really, really liked. I was general counsel for Indiana’s largest healthcare brokerage, so it was-

Chris Allen:

But that makes it worse because you got out of government and then you got pulled right back in, like the Godfather Part Three.

AG Rokita:

Yeah. Well, I don’t know. Some people say if you see the opportunity, take it, others say wait for it, it’s your opportunity. You mentioned TikTok, one of my promises during the campaign in  was I will seek accountability from the Chinese government. And it was in the context of COVID and people laughed at the time and said, “Hey, what we can’t do [that], you’re the state attorney general.” We’ll see. So we got in office and we shut down Indiana’s last Confucius Institute that was operating out of Valparaiso University. And now we’re into these two TikTok lawsuits where we allege there’s been some huge transgressions and we have them researched by the Chinese Communist Party using TikTok against our own kids and adults alike, so there you go.

Jerry Kilgore:

We appreciate all you do in the state attorney general space and appreciate your willingness to join this podcast with Chris and me today.

AG Rokita:

Yeah, no. It’s been great. It’s a great service that you guys do, I don’t know to the five or  people that may watch this or listen to it, I hope-

Chris Allen:

We have more than that. I really can’t speak for the state of Indiana, but we have more than that.

Jerry Kilgore:

Let’s see our ratings increase dramatically with it.

Chris Allen:

That’s right.

AG Rokita:

Always happy to help. And seriously, reach out to Cozen or reach out to us directly if we can be of assistance.

Jerry Kilgore:

Well, I want to thank you again for joining. I want to thank our listeners for listening to season two that is now coming to a close. We’ll begin season three shortly after Labor Day. So I wish everyone a fantastic summer, thank you so much.

Meghan Stoppel

You have been listening to State AG Pulse, brought to you by Cozen O’Connor’s State AG group. Research for this podcast was provided by our associates, Ryan Bottegal, Hannah Cornett, Keturah Taylor, and Emily Yu, as well as our policy analyst, Elizabeth Hill Hodish. If you enjoyed this week’s episode, please leave us a five star rating and review. This will help our visibility and will allow other listeners to learn about the podcast.