Washington —Momentum for a
legislative privacy Bill of Rights got a
big push last week from the Obama
Administration’s top communications policy adviser, which means
that content providers, Internet-service
providers and search engines
could have a big government stick
prodding their ongoing self-regulatory
efforts.
National Telecommunications &
Information Administration chief
Lawrence Strickling said last week
that his agency was recommending
legislation, saying data privacy
needed the “clearer rules of the
road” that such a law would provide.
Strickling and other Commerce
Department officials have been
pushing self-regulation over the past
several months, though stopping
short of recommending Congress
step in with legislation. That next
step has now been taken, in tandem
with Sen. John Kerry (D-Mass.).
Kerry said last week that he had
been talking with both Democratic
and Republican colleagues and would introduce Bill of
Rights legislation, preferably in short order. Kerrys are
working on the privacy issue in at least two branches of
the federal government
: the
senator’s brother,
former cable
attorney Cameron
Kerry, is
chairman of the
Commerce Department’s
Privacy
Council
and has been
instrumental in
developing policy
on the issue.
John Kerry gave
him a shout-out
last week at the
Senate Commerce
Committee
hearing
where Strickling
announced support
for a bill.
Microsoft ,
which has received
acknowledgement
from
Washington for
working on donot-
track functionality
in its browser, said it backs the bill as well.
But Kerry and Strickling both said they wanted the legislation
to provide guidelines within which the industry
could work out the details on its own, with the Federal
Trade Commission given stronger enforcement authority
to make sure it gets it right.
Kerry echoed Strickling’s concern about not discouraging
commerce. He said his goal was to do no harm while
at the same time protecting privacy and, at the end of the
day, to have all stakeholders be able to “stand up and say
this is good.”
Strickling also suggested limitations on the legislation,
including that it not add “duplicative or overly burdensome
regulatory requirements,” that it be “technologyneutral”
and that it reduce burdens for companies already
facing “numerous foreign privacy laws.”
In testimony before the committee, Strickling said one
of the issues prompting privacy concerns was the increasing
use of smaller, mobile video screens, where disclosures
could become more problematic and location-based information
raises new privacy issues.
Prompting concerns for
privacy attorney Marc Roth,
partner at Manatt, Phelps &
Phillips, is whether the bill is
confined to online data gathering
or could be applied to offline information on viewers
collected by cable operators.
At present, cable operators are
allowed to collect information
for their own use.
“There is a question whether
under this new proposal by
the White House and whatever
Congress comes up with might
reach into cable viewership,”
said Roth. “Will cable operators
not be able to collect information
on viewers without
their consent?”
Attorney Benham Dayanim,
an attorney with Axinn, Veltrop
& Harkrider, said the key for cable
operators will be in the details
of any bill:
• How personal information
subject to any do-not-track legislation
will be defined; and
• Whether it will be on a
browser or ISP-specific basis;
• How it strikes the balance between privacy and a
“commercially viable, free, content-based Internet.”
But Dayanim said he isn’t convinced the Privacy Bill of
Rights will make it into law. He said even a general bill
would get pushback because it will be viewed as “the camel’s
nose under the tent,” including potentially creating legal
liability for failure to comply.
He also said it could be viewed as giving a green light to
a more aggressive approach on privacy.
“My sense is that Republicans are not going to be open
to those possibilities,” Danayim said.
