What You Need To Know About Government Policy On Internet Privacy

Privacy is undoubtedly the buzzword of social media these days, just ask Google, Facebook, MySpace, YouTube and even Craigslist. The public is concerned, the media has fixed its glare on the issue, but where do our nation's policy makers stand? With Congress out of session until after the November elections, there's no better time than the present for our online privacy legislative refresher. Consider it your 'Fall Break' reading. After an August spent listening to voters in their districts, lawmakers returned to Washington last month with one eye on a long legislative to-do list and one eye on the above referenced midterm elections that could send many of them back home. Anxious to return to the campaign trail, Congress rushed through their legislative paces, passing a 'continuing resolution' to keep government running through Dec. 3 but leaving work on all 12 annual appropriations bills and a vote on the expiring Bush tax cuts until both chambers return for a lame duck session after Nov. 2. Translation for social media: the odds of Congress passing any kind of online privacy legislation this year are slim to none. So it's with their own eyes towards 2011 that companies like Google, Yahoo, Microsoft and Facebook and interest groups like the Center for Digital Democracy and Interactive Advertising Bureau are planning their lobbying efforts. Topping the agenda for both lobbyists and lawmakers is the extent to which advertisers and social networking sites can gather, retain and distribute users' personal information. Congressmen Rich Boucher (D-Va.) and Bobby Rush (D-Ill.) have introduced online privacy bills in the House, while Senator John Kerry (D-Mass.) has promised to take up the issue in the Senate. The Federal Trade Commission (FTC) is considering providing Web users with a "Do Not Track" option, while the Senate Judiciary Committee has already announced plans to update the Electronic Communications Privacy Act (ECPA). House Draft privacy legislation was introduced May 4, 2010 by House Energy and Commerce Communications Subcommittee Chairman Rick Boucher (D-Va.) and Ranking Member Cliff Stearns (R-Fla.). Their measure would require websites to specify how they are using Web users' information and where it is being shared, or face sanctions by the FTC; would allow consumers to 'opt-out' of behavior-based advertising; and would require express permission from individuals in order for companies to share personally-identifiable information with unaffiliated third parties, and to collect "sensitive information" such as medical records, financial accounts, Social Security number, sexual orientation, and precise geographic location information. Meanwhile, House Subcommittee on Commerce, Trade and Consumer Protection Chairman Bobby Rush (D-Ill.) is also moving forward with his "Best Practices Act" (H.R. 5777), introduced in July. His bill would require companies to notify individuals of the type of information they are collecting and why, or face sanctions by the FTC; would require companies to provide individuals with an 'opt-out' option and obtain consent before collecting, using or disclosing sensitive information; and would exclude companies participating in an FTC-approved Safe Harbor Self-Regulatory Choice Program from the requirements. Rep. Rush had scheduled a hearing for next week to review "existing solutions and forthcoming" privacy mechanisms, as well as the "prospective viability" of a Do Not Track list, according to his office. The House's early adjournment means the hearing won't happen, for now. Rush's office is leaving the option open, however, of rescheduling the hearing for a later date, meaning it could happen during the lame duck session. Outlook: Overall, both bills appear to work alongside advertisers in supporting the industry's current self-regulatory practices, although Rush's bill gives the FTC a much stronger hand in regulatory enforcement. Both measure have predictably come under fire from all sides, with privacy advocacy groups criticizing the definition of sensitive information as too narrow and calling for stronger measures, and industry groups arguing the bills would stifle innovation and add extra costs and burdens for companies. All three congressmen have pledged to work together, but politics will certainly come into play as Boucher faces a tough reelection campaign and a turf battle emerges between the two subcommittees and their respective chairmen. Rush has taken the lead in advancing his bill, holding a hearing in July on the measure. Nonetheless, neither bill appears to have the momentum to step ahead of other legislation this session, meaning the issue will be pushed to the next Congress. Senate On July 27, 2010, Senate Commerce Committee Subcommittee on Communications Chairman John Kerry (D-Mass.) announced he would pursue an online privacy bill in the Senate, pledging to go beyond targeted advertising to also include new, baseline standards for privacy protection. Outlook: Sen. Kerry has yet to introduce legislation, signaling much of the legislative legwork on the issue will fall to the next Congress. Despite the slower start, look for Senate action to be much more sweeping than the House, with top Democrats on the Senate Commerce Committee, including Chairman Jay Rockefeller (D-W.Va.), already calling for broad new rules and a series of tough hearings on every aspect of the issue throughout 2010. Left unknown at both ends of the Capitol is what would happen should the midterm elections produce a Republican majority. On the Senate side, a GOP win would shake up the leadership of the Commerce Committee that has pledged to enact stringent rules, while a Speaker Boehner in the House could mean Cliff Stearns appointed as chairman of the House Energy and Commerce Committee. Electronic Communications Privacy Act Both the House and Senate Judiciary Committees held hearings last month on how to update the ECPA, showing a rare display of bipartisan support for updating the law to ensure the government's ability to access stored, or "in the cloud" data. At issue is how to adapt the 1986 law for the digital age, primarily as it relates to cloud computing. Microsoft, and similarly invested companies like Google and Oracle, want to make sure they address any discomfort lawmakers have with the technology's privacy elements to avoid the type of obstacles they're currently facing in Europe. Federal Trade Commission (FTC) FTC Chairman Jon Leibowitz told the Senate Commerce Committee in a July hearing on online privacy that his agency is considering creating a "do not track" list for online advertising, similar to the "do not call list" currently used to regulate telemarketing calls. More information on the viability of such an effort could come in the agency's much-anticipated report on online privacy, due at the end of this year. The difficulties the FTC faces in attempting to regulate online privacy were documented by agency officials themselves earlier this month. Whatever the FTC decides and however Congress decides to act, there is no doubt they will be both urged on by and responding to an anxious and eager public. A poll released by Zogby International earlier this summer found that 80 percent of U.S. adults are concerned with companies recording their online habits and using the data to generate profit through advertising, while 79 percent already support a national "Do Not Track List."

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What You Need To Know About Government Policy On Internet Privacy

Katie Kindelan

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