Why the New Senator Markey May Be the Most Influential Privacy Congressman in History
Edward Markey, elected tonight to the Senate in a special election in Massachusetts, is quite possibly the most influential member of the House of Representatives in the history of privacy legislation.
Markey has been involved in countless privacy issues since he came to the House in 1976, as part of the post-Watergate generation of reformers in Washington. For the past decade, he has been the Democratic co-chair with Republican Joe Barton of the Privacy Caucus in the House.
The late 1990’s, though, are the period where Markey likely had his greatest influence on U.S. privacy legislation. At the time, he was a senior member of the House Energy and Commerce Committee, which has broad jurisdiction over much of American business. During this period, the Committee led the way on re-organization of the telecommunications industry in 1996 and the financial services industry in 1999, as well as a major healthcare reform in 1996.
Markey’s explained his privacy strategy during the 1999 debates on what became the Gramm-Leach-Bliley Act (GLBA). He said that sometimes a major industry sector is desperately seeking a legislative overhaul. At that moment, the industry is ripe to accept a degree of privacy regulation as part of a broader legislative package.
And that’s what happened:
(1) The Telecommunications Reform Act of 1996 allowed previously separate players in the cable, broadcast, telephone and other industries to compete in each others’ markets. It also contained the Customer Proprietary Network Information rules that continue to apply today. Markey pushed in committee to include those CPNI rules.
(2) The Health Insurance Portability and Accountability Act of 1996 (HIPAA) had no privacy provisions in its original form. The law was primarily known as the Kennedy-Kassenbaum bill, which would let people with pre-existing conditions move from one job to another. Later, the bill included provisions that industry favored to make transactions with the government more efficient. Then, Markey pushed for the accompanying privacy provisions that turned into the HIPAA privacy rules that apply today.
(3) The financial services bill in 1999 was designed to make things easier for business, by repealing the Depression-era limits of the Glass-Steagall Act. For a long time, the bill contained no real privacy provisions. Then, in a dramatic House hearing that has been memorialized by Chris Hoofnagle and Emily Honig, Markey’s privacy amendment carried on a startling voice vote, and that amendment contained many of the provisions in GLBA today.
Those skeptical of privacy legislation may oppose some of the bills that Markey championed. Those favoring privacy legislation may find it discouraging that it is so difficult to enact protections in Congress unless industry also favors the bill. But any observer of privacy legislation can appreciate the shrewdness with which Markey pursued his passion for the issue, and the effects of his efforts.
The floor is open for nominations for any other member of the House of Representatives who has had a bigger impact on privacy legislation. But my vote goes to now-Senator Ed Markey. It will be interesting to see what new privacy initiatives he will bring to the new chamber.
About the Author
Peter Swire, CIPP/US, is the Nancy J. & Lawrence P. Huang Professor at the Georgia Institute of Technology, in the Scheller College of Business. He is a Senior Fellow with the Future of Privacy Forum and the Center for American Progress, and Policy Fellow with the Center for Democracy and Technology.
In 2013, Swire served as a member of President Obama’s Review Group on Intelligence and Communications Technology. Previously, he was co-chair of the Do Not Track standards process of the World Wide Web Consortium. He served in the White House under both Presidents Clinton and Obama, and is lead author of two texts for Certified Information Privacy Professionals examinations of the IAPP.