DNT Interests Move On With No Indication of White House Consumer Privacy Bill

In early October, privacy advocates told us the White House, spurred by European Union efforts at comprehensive data privacy legislation, had sent its own proposed legislative language to the Office of Management and Budget for review while trying to build congressional support (CD Oct 7 p6). There has been no new information since; OMB did not respond to a request for comment. “If they've waited this long, they're probably going to do the launch properly, which means not having little mentions bubble up, but having a well-orchestrated launch and making a big deal out of it,” said TechFreedom President Berin Szoka. The reasons observers gave for the continued delay are the same ones that have plagued the proposal since privacy advocates were told a draft was near in March: The ongoing leaks about government surveillance programs and the lack of bipartisan congressional support.

Since the October hints at a proposed bill, industry, Congress and technology companies have all moved on varying forms of privacy protections without waiting for the White House. The Future of Privacy Forum and Sen. Chuck Schumer, D-N.Y., released a code of conduct for in-store mobile device data collection (CD Oct 23 p8). Sens. Ed Markey, D-Mass., and Mark Kirk, R-Ill., reintroduced the Do Not Track Kids Act in the Senate, while Reps. Joe Barton, R-Texas, and Bobby Rush, D-Ill., introduced a concurrent House bill. In early November, the new Android 4.4 operating system -- “KitKat” -- was released with a new privacy feature allowing users to easily opt out of behavioral ads and eventually forbidding advertisers from tracking users through the device ID, according to Google Play’s developer program policy (http://bit.ly/QkPyyn). And the drawn-out World Wide Web Consortium-backed Do Not Track working group has moved to close out its first definitions (CD Nov 22 p16).

The Do Not Track Kids Act has “no chance,” said Future of Privacy Forum Executive Director Jules Polonetsky. It’s “not a logical idea and doesn’t seem to be a practical measure,” he said. The bill, focused on children aged 13 to 15, is too “niche” and “would create a real oddity,” he said. Polonetsky would rather see a combination of ongoing multistakeholder discussions -- like the NTIA’s mobile application transparency talks (http://1.usa.gov/Wfb6vx) -- and a general White House privacy bill. “I certainly know the administration is supportive of advancing the bill,” he said. In the meantime, “it’s worth noting that ... the de facto world of ‘do not track’ in some ways is advancing,” said Polonetsky, referring to Android’s new operating system and industry codes of conduct. FPF’s code of conduct, for example, now has “13 or 14” tech vendors on board, roughly double that from when the code was released, he said.

For Consumer Watchdog Privacy Project Director John Simpson, the kids’ bill might be the one area where “there is the possibility of bipartisan privacy legislation,” he said. “If you're going to get a real consensus, that seems to be a place you're most likely to get it.” Simpson stressed that an all-inclusive bill “is absolutely essential,” mentioning the dormant bill from Sen. Jay Rockefeller, D-W.Va. (CD March 1 p11). The White House has “been kind of dragging their feet here,” he said.

"The real story in some sense is not when does the bill come out and what does it say, but how hard is the White House willing to push for it,” Szoka said. Several observers have wondered who the White House proposal’s main advocates are, because Commerce Department General Counsel Cameron Kerry is no longer as involved since briefly taking over as the department’s acting secretary this summer. Polonetsky pointed to White House Deputy Chief Technology Officer Nicole Wong as a “very important force within the White House” and NTIA Administrator Larry Strickling, who is “playing the lead role for the administration."

Tuesday’s House Commerce subcommittee hearing on FTC oversight is a chance to gauge lawmakers’ feelings on granting the agency’s new data security enforcement authority, Szoka said. Observers have long expected the White House’s privacy efforts to grant the FTC more power to dictate companies’ privacy policies. The Commerce, Manufacturing and Trade Subcommittee hearing will feature the four seated FTC commissioners. They are expected to discuss the commission’s Section 5 authority, according to a committee spokeswoman (CD Oct 21 p9). George Mason University School of Law Lecturer James Cooper recently argued in an extensive academic paper (http://bit.ly/HI2e1C) that the FTC needed to clarify its own authority to reduce market uncertainty and opportunities for rent-seeking by businesses. Szoka agreed: “Any attempt to give the FTC sweeping new powers to regulate the use of data will inevitably merge with a long-overdue conversation about how the FTC currently uses its already-sweeping powers."

Industry support for transferring data security enforcement to the FTC could significantly improve the White House proposed bill’s chances, Simpson said. “If they came up with a bill that industry could support that gives it a better chance of getting support certainly from the conservative side,” he said. “Whether they can do that, I just don’t know.”