With Eye on Europe, White House Pushes Consumer Privacy Bill
The Obama administration is trying to build congressional support for yet-to-be released language, currently under review by the Office of Management and Budget, the White House hopes will be the basis for a consumer privacy bill, privacy advocates told us Friday. The draft, in the works since President Barack Obama called for it in February 2012, has been derailed multiple times, most significantly after this summer’s revelations about secret government surveillance programs. But recent European Union efforts at similar data privacy legislation have spurred on the U.S. they said.
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European concerns about U.S. privacy law and ongoing trade negotiations between the U.S. and the European Union prompted the White House to push the bill again, observers said. It’s the “driving reason,” said Center for Digital Democracy Executive Director Jeffrey Chester. “The Obama administration is under pressure to show the EU that we have at least a proposed framework to protect privacy.” Friday, U.S. Trade Representative Michael Froman canceled the second round of Transatlantic Trade and Investment Partnership discussions set for next week, citing the government shutdown. (See separate report below in this issue.)
The interested parties said the U.S. still is working to release its own privacy bill as the EU has already released its own data protection law and continues to call for stricter privacy rules on U.S. technology companies. It “seems likely” the U.S. bill will be introduced sometime this fall, said Justin Brookman, director of consumer privacy at the Center for Democracy and Technology.
When introduced, the U.S. bill is expected to give the FTC more power to dictate companies’ data privacy policies, observers said. “It’s about increasing dramatically the amount of leverage the government has,” said TechFreedom President Berin Szoka. Opinions differ, though, on the exact powers the FTC should have. “Today it’s all very soft pressure,” Szoka said. “If this bill passes, the FTC will have a lot of power.” That power could range from overseeing an industry-led, self-regulatory effort, to the authority to dole out monetary penalties for violating the Consumer Privacy Bill of Rights, which the White House laid out in February 2012 (http://1.usa.gov/AcsRci). “That could mean the difference between a true self-regulatory approach and a European-style, co-regulation approach,” where “really the government is deciding what’s adequate, said Szoka. “That may be where we're heading, and that’s been my concern all along."
The FTC should have rulemaking authority, Chester said. “We don’t believe the bill does that,” he said. “We're concerned the bill actually ties the hands of the FTC. That it won’t be able to develop the rules and regulations to make this so-called privacy bill of rights meaningful in the marketplace for consumers.”
The bill could put the Commerce Department in charge of running industry stakeholder meetings which would determine regulatory guidelines. That’s a mistake, Chester said. “Those people at Commerce are defenders of a data collection status quo that is unconscionable and undemocratic,” he said: “One of the major flaws of the bill is having a role for the Commerce Department, whose principal obligation is to support U.S. commercial interest,” not consumers’ rights. The “rhetoric of rights” might look good in the bill, but the teeth to enforce those rights are lacking, Chester said. “The devil’s in the details."
Previous consumer privacy efforts have gotten “bogged down in a lot of minutiae,” Brookman said. “A simple, principles-based law is probably the way to go ... and the practical application would be worked out through the development of voluntary safe harbor programs.” That’s where industry groups create their own code of conduct, and petition the FTC for approval, said Brookman.
The debate is theoretical unless the bill passes, which the observers agree seems unlikely. After the government surveillance revelations, the shutdown and the looming debt ceiling negotiations, partisanship will be running high and the president’s proposals will be more toxic, they said. Although the administration is looking for congressional support to introduce the bill, it might have a tough time, Chester said. “Do they have any powerful co-sponsors?” Chester said. “Do they have co-sponsors that will do anything? I don’t believe so.” (cbennett@warren-news.com)