The Secure Times

An online forum of the ABA Section of Antitrust Law's Privacy and Information Security Committee

Cameron Kerry: The Department of Commerce Will Not Wait for Privacy Legislation

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The Center for Technology Innovation at Brookings hosted a discussion on July 21 featuring Jon Leibowitz, Chairmanof the Federal Trade Commission, and Cameron F. Kerry, General Counsel of the U.S. Department of Commerce. Both share their views on the Department of Commerce and FTC’s strategies to protect consumer privacy.

Chairman Leibowitz reported that, in response to questions posed by the FTC staff report on privacy published in December 2010, the FTC received more than 450 comments from interested parties, which are being analyzed now. The FTC expects to issue a final report later this year.

Chairman Leibowitz also highlighted which critical elements are essential ”to a fair process and an outcome that ensures both the protection of consumer privacy, as well as business innovation.” These are clear and enforceable standards, and a transparent process involving all stakeholders.

Mr. Kerry reminded the audience that the Obama administration announced last March its support of legislation to create a consumer privacy bill of rights, a baseline data privacy protection. He added that the Department of Commerce believes that:

a baseline protection should be flexible, should be enforceable at law, and serve as the basis for the development of enforceable codes of conduct. These codes of conduct should specify how the principles in the bill of rights would apply in specific business context.” …

We need a process that allows industry to be responsive to changing consumer expectations and enables stake holders to identify privacy risks early in the development of new products and new services. We need a process that is nimble enough to respond quickly to consumer data privacy issues as they emerge and that can address them without the need for legislation or regulation because legislation and regulation simply do not move at Internet speed.”

Mr. Kerry then exposed what will be the role played by the Department of Commerce in this process.

“As I said in the Green Paper that we issued last December, more than self-regulation is needed. At this point, it’s clear that an effective and a representative process usually — not always but usually — takes a nudge from the government. That’s why we see a need for the government to take the initiative in convening stakeholder discussions….

The Department of Commerce will enlist stakeholder participation by issuing public notices that describe the issues in play and announcing times,  dates, and places for public meetings, and will provide opportunities for remote participation by live streaming and options for viewers around the world to post reactions and comments. We intend to run an open process but independent — industry stakeholders and independent third parties will hold the pen in drafting the codes.

The FTC will play an important role, as the Department of Commerce believes that:

“…effective enforcement will benefit from legislation that grants the FTC a clear authority in the commercial data privacy arena. Granting the FTC explicit authority in enforcing the principles of the bill of rights — privacy bill of rights — will strengthen its role in consumer data privacy policy and give it the enforcement tools that are needed in this field. And if companies know that the FTC can enforce baseline legislation, that is an incentive to define codes of conduct and to move forward with the process as this world advances into new areas.”

Mr. Kerry then added that:

“At the Department of Commerce, we don’t intend to wait for legislation. We are going to begin to identify pressing privacy issues that can benefit from a multi-stakeholder process and we’ll continue discussions with the FTC about baseline protections, about how to approve codes of conduct and about how to implement the multi-stakeholder process. And then we will begin to convene groups to energize this process in a conversation that today is long overdue.”

More information, including the uncorrected transcript of the event, here. All quotes are from this uncorrected transcript.


Author: marieandreeweiss

Marie-Andrée was educated in France and in the United States, and holds law degrees from both countries. She is fully bilingual English-French, and writes articles regularly in these two languages on various privacy-related topics. Marie-Andrée is a member of the Bar of the State of New York. As an attorney in solo practice, she focuses on intellectual property, First Amendment, privacy, and Internet-related issues. Before becoming an attorney, she worked several years in the fashion retail industry, as a buyer then a director of marketing. She is a member of the New York State Bar Association (Intellectual Property Section and International Section), and of the American Bar Association (Business Law Section, Section of Antitrust Law, and Section of Intellectual Property Law)

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