Obama Administration Drafting Legislative Language on Privacy Bill of Rights
A working group is drafting legislative language incorporating the Obama administration’s privacy “blueprint,” Cameron Kerry, general counsel at the Department of Commerce, told the Senate Commerce Committee. “We stand ready to work with the committee and other members of Congress to put baseline privacy legislation into law,” he told a committee hearing Wednesday on the need for privacy protections.
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Committee Chairman John Rockefeller, D-W.Va., said there’s need to take up “strong consumer-focused privacy legislation this year,” but he didn’t think “significant consensus exists yet on what legislation should look like.” He will continue to work with committee members on privacy legislation, he said. But Sen. Patrick Toomey, R-Pa., said though the issue itself was “important,” he believes it’s “premature to begin discussing specific legislative fixes … when we don’t fully know whether or not or to what extent the problem exists.” Sen. John Kerry, D-Mass., said Congress can’t afford to wait another year to enact legislation to provide standards to protect consumer privacy.
Commerce’s Kerry spoke of a “dual market failure” that necessitates legislation. While many companies are “responsible stewards of consumers’ personal information,” it “exceeds” the ability of even the most sophisticated consumers to understand and control what information is collected about them, he said. Also taking no action would allow “outliers and outlaws” that aren’t “good stewards” to take advantage of consumers’ trust and lack of information, he said. That’s why many companies, consumer groups and the administration support “baseline consumer privacy legislation,” he said.
FTC Chairman Jon Leibowitz said he’s optimistic that a “meaningful” Do-Not-Track mechanism that “allows consumers to control the collection of their browsing information with limited exception … will be in place by the end of the year.” The system will be run by the industry, unlike the government-run do-not-call registry, he said. The FTC is working with the Digital Advertising Alliance on the mechanism, he said, and the system could materialize either through legislation or efforts of groups like the World Wide Web Consortium, he said. The FTC’s final privacy report calls for Congress to enact general privacy legislation as well as specific statutes addressing data security and data brokers, he said.
Referring to her agency’s privacy report, FTC Commissioner Maureen Ohlhausen said some of her colleagues have supported “additional privacy legislation that would go beyond Section 5” of the FTC Act. She’s seeking to examine “what harms are occurring now that Section 5 cannot reach and how should harm be measured,” she said. “Although the Commission’s Privacy Report did not reject the fundamental insights of the harm-based approach, it appears to embrace an expansion of the definition of harm to include ‘reputational harm,'” or “the fear of being monitored,” or “other intangible privacy interests,” Ohlhausen said. “I have reservations about such an expansion.”