Privacy’s Zeitgeist Moment in the US?

November 12, 2010

By Fran Maier


Destination360 White House

In the last year industry has been on notice that privacy legislation is coming. The recent elections have not significantly diminished the “threat” of legislation since privacy has become a bipartisan issue thanks to vocal media, advocates and consumers who have made the case for greater regulatory action. It’s no surprise then that today the Wall Street Journal announced that the Obama Administration will seek to establish a new federal position to oversee privacy matters. Of course, Congress would have to pass a law to grant this position any real authority so it remains to be seen whether such a position could in the future have the same authority as the privacy commissioners we see in countries around the world like Canada, the U.K. and Australia.

On a related note, earlier this week the New York Times published an article claiming the Federal Trade Commission and Department of Commerce are in a “showdown” to see whose vision of privacy protection wins out (visions to be outlined in their respective and forthcoming privacy reports). I think that’s a misleading characterization of the situation as do my fellow privacy colleagues Jules Polonetsky and Chris Wolf – what we’ve seen so far indicates compatibility, not disharmony . There are distinct privacy roles for the Federal Trade Commission (domestic enforcement) and Department of Commerce (international standards) as well as an opportunity for collaboration. Ultimately, I think an effective combination of bottom-up (self-regulatory) and top-down (federal regulation) efforts will carry the day.

Recently I attended the International Conference of Data Protection & Privacy Commissioners in Israel and “co-regulation” was one of the buzz words that came up a great deal. With “co-regulation”, legislators, federal regulatory bodies, and industry self-regulation all have a role to play, with regulation providing a “backstop” for privacy enforcement and protection. This concept goes a long way to satisfying a number of constituents including the international privacy community and provides a framework for more politically meaningful self-regulatory programs.

A Commerce Department official quoted in the Wall Street Journal article made the case that “consumer trust in the Internet is essential for businesses to succeed online”. We couldn’t agree more here at TRUSTe. The Internet is powered by an information economy and the advancements and innovations that it brings will cease if we cannot protect provide meaningful transparency, choice and accountability for privacy.

With a flurry of recent privacy activity in Congress, forthcoming privacy reports from major federal bodies, and implementation of the advertising industry’s opt out (including TRUSTe’s TRUSTed Ads Program) 2011 is shaping up to be a breakthrough year for privacy. To echo a comment made by Jules’ in his blog post I referenced earlier, “the US is finally ‘in the game’!”.


1 thought on “Privacy’s Zeitgeist Moment in the US?

  1. Fran,

    Legislation, particularly in recent years, has been a blunt solution to urgent problems and appended with less visible “sweetners” to ensure its passage. Then Congress, having writ, moves on. This is not the kind of approach that will best suit privacy.

    Privacy is not ensured tomorrow on the basis of a decision today. It is best handled as an on-going negotiation. And the best role for government in the process is to set terms for the outcome of that negotiation, not the shape or size of the table at which it is held.

    If Congress were to say consumers shall 1) know when and why data is collected, 2) be assured it can be used and held only as long as it takes to execute on that purpose, and 3) have the right to see their file and change what is wrong that would be the end of it.

    The FTC can the, in the normal course of its work, undertake to confirm companies are adhering to the modest principles (and bring actions when they find otherwise).

    Tell companies to be accountable but don’t dictate day-to-day behavior.

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