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Rockefeller: No Consensus on Baseline Privacy Legislation

Jay Rockefeller (D-W.Va.) said Wednesday he does not think there is consensus
yet on baseline privacy legislation, but that won't stop him from trying to get
a bill passed in this Congress.

By most accounts that is a tall order in an
election year with that admitted lack of consensus.

At a Senate Commerce Committee hearing on FTC
and Administration online privacy proposals--Rockefeller said industry
self-regulators would get their say in an upcoming hearing--the chairman said
that "strong, consumer focused" legislation was needed this year.

While he gave a shout out to industry for
self-regulatory efforts to date--those have included voluntary do not track
mechanisms and codes of online conduct--self regulation was not enough. He said
that, from phone companies to oil companies, consumers rights would wind up
losing out to industry needs. "In the hyper competitive on-line
marketplace," he said, "the need to monetize consumers' data and profits
will win out over privacy."

Sen. John Kerry (D-Mass.), said that he was
ready to negotiate and compromise on legislation, and that it was a
conversation that needed to happen.

Making the administration's pitch for
legislation was Cameron Kerry (John Kerry's brother), former cable attorney and
currently general counsel at Commerce.

Cameron Kerry, who helped draft the
administration's privacy bill of rights proposal, said that the administration
was currently translating its bill of rights into legislative language and was
ready to work with Congress to pass a bill.

That bill would codify basic privacy
principles, give the FTC power to enforce them, and formally enshrine the
National Telecommunications & Information Administration as facilitator of
sector-specific voluntary stakeholder guidelines.

One of those not in the consensus on
legislation was ranking Commerce Committee member Sen. Patrick Toomey (R-Pa.).
He said he had not heard persuasive arguments on why the FTC needs more
authority, thought there should be some cost-benefit analysis of the impact of
privacy legislation before they went down that road.

He called it premature to begin discussing
specific legislative fixes or increased FTC authority when the problem had not
been identified.

FTC Chairman Jon Leibowitz, one of the
witnesses at the hearing, said that there were gaps in the law that legislation
would help fill in. For instance, the FTC can go after deceptive privacy
policies, but cannot mandate that companies have them in the first place.

While Leibowitz gave the Digital Advertising
Alliance props for their do-not-track self regulatory efforts, he said that,
generally, self regulation has been uneven and that legislation might help even
it out, while giving consumers more faith in the online space, something he has
long pointed out is to the benefit of industry and government.

Responding to Toomey's suggestion the online
privacy problem was unclear, both Senator and General Counsel Kerry suggested
the problem was clear, and two-fold. People don't have the ability to know just
how their information is being collected and shared -- even buy good actors in
the space -- and will likely not know without help from the government, and no
matter how many good actors there are, there will be bad actors that the
government needs to protect consumers from through legislation.