Inside 1to1:Privacy

Experts Weigh In on "Privacy Bill of Rights"

October 19, 2011

By Jennifer L. Saunders, CIPP

Will a federal "Privacy Bill of Rights" be forthcoming from the U.S. government, or will ongoing proposals, hearings and discussions be the status quo for the foreseeable future?

Those were some of the key questions explored by a panel of privacy experts addressing the high-profile topic, "Will There Be a 'Privacy Bill of Rights,' and If So, What Will It Mean?" at the IAPP Privacy Academy in Dallas, TX, in September.

Christopher Wolf of Hogan Lovells opened the session, describing the developments of the past several months, including the Department of Commerce's greenpaper calling for privacy legislation almost one year ago; the Federal Trade Commission's report on consumer privacy; the call by the Obama Administration for a "Consumer Privacy Bill of Rights," and proposals from legislators like Sens. John Kerry (D-MA) and John McCain (R-AZ) that followed.

During the session, Wolf was joined by Justin Brookman of the Center for Democracy & Technology and Jules Polonetsky, CIPP, of the Future of Privacy Forum to explore the headline-making question of how soon such a bill will be enacted into law--if at all.

Polonetsky discussed the impetus for the clamor for privacy legislation on Capitol Hill at the current time, reflecting back on concerns raised 10 years ago about cookies, tracking and targeting and media stories about "secret, scary things that are happening under the hood."

With the FTC's promise that "if we didn't get it right ourselves," the move would be away from self-regulation to a more hands-on regulatory approach, Polonetsky noted, "Here we are with the media putting this back on the agenda."

Brookman pointed out that among developed countries, currently only the U.S. and Turkey lack comprehensive data protection laws, and Wolf stressed that every company should have a privacy plan in place.

More and more businesses are "getting it" when it comes to privacy, Polonetsky said, adding that if they do not, the legislators have the tools to push the issue through inquiry letters, bills and hearings.

Brookman noted that "no one in behavioral advertising wants to be the one collecting the least amount of data," adding that one of the key issues in addressing privacy issues surrounds data usage.

"We all care about data innovation and the value of this," Polonetsky said, adding that the key will be to do more to educate on the frame value of careful, respectful use of data.
Both Wolf and Polonetsky commented that they do not expect to see a "Privacy Bill of Rights" become law in the near future due to numerous factors--including the political process itself--but, Polonetsky noted, many privacy advocates are suspicious of a self-regulatory model.

"Can you name anyone who's been kicked out of any trade group after or before any privacy meltdown?" Polonetsky asked the attendees. With no responses, he added, given that, it's "easy to see why there is not a lot of trust."

In terms of how quickly a "Privacy Bill of Rights" could become a law in the land, the presenters agreed that passage of such a law is just the first step, and the rulemaking process itself would take years.

Whatever the timeline may or may not be for federal broad-based privacy legislation, Wolf urged companies and advertisers not to ignore the issue. It is important to engage, he said, and to be aware.