Online Privacy Revisited:
Examining Its Place in the Larger
Debate.
March 6, 2003
Overview | Video | Panelist Biographies | One Pagers
The Internet Caucus Advisory Committee hosted its first panel event of 2003 on March 6 to debate online privacy. The ICAC's online privacy working group developed the event on "Online Privacy Revisited: Examining Its Place in the Larger Debate." The working group was chaired by Jerry Berman (Center for Democracy and Technology) and Ron Plesser(Piper Rudnick)
Paula Bruening (CDT), standing in for Mr. Berman, welcomed attendees -- the vast majority of which were Congressional staff and press. Ms. Bruening also alerted attendees to a compilation of papers made available to them called "Considering Consumer Privacy - A Resource for Policymakers and Practitioners." Many experts in the privacy field -- including some on the panel -- contributed to the resource. (The resource is available at CDT's web site).
The moderator, Ron Plesser (Piper Rudnick), introduced the esteemed panel of speakers and delivered a brief overview of the privacy debate encountered by the 108th Congress. Mr. Plesser noted that many privacy factors were gathering and could contribute to a "perfect storm" for privacy. Though, he acknowledged that they could dissipate. According to Mr. Plesser, the factors contributing to this perfect storm include:
- The expiration of the preemption provision (Jan 2004) of the Fair Credit Reporting Act (FCRA)
- Gramm-Leach-Bliley and its interaction with FCRA
- Spam and the pending legislation surrounding it this year
- Government privacy issues such as Patriot Act II, FISA and the Total Infrastructure Program
- Telemarketing and the do not call lists
- Identity theft, the new legislation and penalties
- Privacy legislation itself, including efforts from Hollings, McCain and Stearns.
Mary Culnan, Slade Professor of Management and Information Technology at Bentley College and author of the 2000 Web Sweep, discussed her evaluation of the current state of self-regulation efforts by industry. Culnan noted that privacy notices on commercial websites had reached a plateau of adoption stating "this is as good as self-regulation is going to get." Ms. Culnan stated that perhaps legislation is appropriate to make sure all sites do have a privacy notice. Culnan feels privacy notices are analogous to food labels that we have come to expect on most all products. She also reminds us that on top of a good privacy policy confidence in a website can be developed through brand recognition, word of mouth, third party endorsements and privacy seals.
John Scheibel, Vice President of Public Policy at Yahoo! Inc., explained why the privacy issues concern Yahoo! as an online company. In a competitive online environment, Scheibel discussed the importance privacy notices have in building trust and confidence among consumers. He noted that privacy legislation could harm those companies, such as Yahoo! who are good actors and have privacy notices on all sites. Scheibel concluded by outlining five "potholes" to avoid while dealing with online privacy:
- Avoid discrimination between online and offline information.
- Avoid opt-in - good notices are crucial for consumer choice.
- Avoid 51 different sets of requirements (State legislation).
- Avoid granting private rights of action.
- Avoid delegating details to Administration agency for a broad rulemaking.
Ed Mierzwinski, Consumer Program Director for US PIRG outlined the issue he felt to be most important in this debate - the expiration of Federal preemption in regards to the Fair Credit Reporting Act (FCRA). Mierzwinski feels notice and opt-in are not enough, consumers need the right to be able to change information collected about them or to fight back. He also explained the best way to develop a uniform federal policy is to give control back to the states. The states, as rational actors, will then be the drivers on this issue.
The final panelist, Joe Rubin, Director of Congressional & Public Affairs for the US Chamber of Commerce, began by explaining the main driver to new legislation is prevention of consumer harm. Rubin explained that true consumer harm in the privacy arena happens in the offline world with ID theft - which has not been an online issue. Rubin also disagreed with the idea of state legislation driving the debate; explaining that state legislation would lead to 50+ different regulations with a fight to pass the strictest legislation - not uniformity at the Federal level. Rubin clarified that online data being collected was typically marketing data. This data is different from FCRA data -- used to help flag theft, allow for instant credit checks and records a true credit history.
The above views are those of the panelists -- not the Internet Caucus or the Advisory Committee. The Internet Caucus Advisory Committee holds these balanced panels as educational debates to better educate Congressional Members and staff about the current Internet debates in the 108th Congress.
For more detail regarding the event please view the complete video.