Boucher Moving Ahead with Privacy Bill

Legislation would “replicate and reflect in the statute the current best practices with regard to targeted advertising,” Boucher said. “We're very close to having a discussion draft to circulate.” Boucher called privacy one of his top legislative objectives, in an interview last week (CD Jan 25 p1).

The growing number of privacy abuses requires rules, said U.K. Parliament member Philip Dunne. Phishing activity doubled in 2008 in the U.K., he said. Industry and government must find ways to restore trust in information management, he said. However, it’s a “huge task to figure out from a legislative perspective … how we segregate among all the different issues that may be material to users and establish an effective and non-annoying system for providing that information,” said Network Advertising Initiative Executive Director Chuck Curran.

Companies and privacy advocates are closely watching how Boucher’s bill will define opt in and opt out, they said. Opt in can do little to protect consumer privacy if the rule is too loosely written, for example, said Center for Democracy & Technology Vice President Ari Schwartz. “It matters more to me what the words actually mean.” Companies get “nervous when they hear the words “opt in,” because the requirement could make websites more annoying for consumers to enter and navigate, said Yahoo Chief Privacy Officer Anne Toth. Opt-in can present “a lot of consumer experience challenges,” she said.

Any privacy legislation introduced by Congress should apply to online and offline marketing, said company representatives and consumer privacy advocates. Online is doing more on privacy transparency than offline, said Yahoo’s Toth. Most offline direct marketing doesn’t happen in an opt-in way, and it’s much easier to opt out online, she said. Ultimately all information collected, whether online or off, goes into the same databases, she said. “To say we're going to treat some of it … quite differently than others … creates some interesting challenges for businesses down the road.” CDT “strongly prefer[s] both an online and offline bill,” said Schwartz. “Let’s be intellectually honest about this and cover everything if that’s our intent.”

The industry has accomplished much through self-regulation, said Toth and Curran. It’s “vitally important” there’s some focus in the bill on the “virtues” of self-regulation, said Curran. “There have to be carrots as well as sticks.” Toth said government regulation should codify self-regulated standards.

Panelists expect the bill to propose law that would preempt existing state privacy rules. Marc Groman, counsel for the House Commerce Committee, said he’s “sure it’s part of the conversations,” because previous bipartisan legislation in the space has included such provisions. Schwartz said it’s “very unlikely” the bill would not preempt the states. Preemption provisions are key to ensuring “business certainty,” Curran said.

The first draft of the bill probably won’t be “perfect for anyone,” even groups like CDT who strongly back legislation, said Schwartz. He’s optimistic reasoned discussions will lead to a good final product. Boucher has significant background on Internet issues, so “if there’s someone likely to get it right, it’s him,” said Toth. - Adam Bender, Josh Wein

Conference Notebook …

The wireless industry needs a national set of consumer protections that would preempt state laws, House Communications Subcommittee Chairman Rick Boucher, D-Va., told the State of the Net conference Wednesday in an overview of the subcommittee’s 2010 legislative agenda. “It is really the poster child for an area where national standards are necessary,” because wireless service is mobile and wireless customers take their service across state lines regularly, Boucher said. “For millions of users, it’s confusing to establish which state has the most relevant consumer protections,” he said. Internet privacy safeguards and spectrum inventory are also key goals for the subcommittee, he said. (See separate report in this issue.) And he hopes to have a markup on his and Rep. Lee Terry, R-Neb.’s, USF reform bill by early March at the latest, he said. “It’s going to be a reasonably short legislative year,” with fewer days in session than in 2009, “but I think this agenda can be accomplished,” he said.