Industry Outnumbers Consumer Groups in Private NTIA Policy Meetings

The NTIA documents and emails, some partially or fully redacted, show the agency consulted Charter Communications, Google, Intel, Microsoft and the 21st Century Privacy Coalition, a group funded by ISPs like Comcast, AT&T and Verizon. Tech industry and trade groups included: CTA, the Computer & Communications Industry Association, NetChoice, BSA|The Software Alliance and the Information Technology Industry Council. The four consumer and privacy groups were the Center for Democracy & Technology, American Civil Liberties Union, Access Now and Common Sense Media.

The list of collaborators shows the agency is serious about speaking to interested parties, said NetChoice Vice President Carl Szabo: “It looks like NTIA wants this to be a consensus driven process that has the support of all.”

But Electronic Frontier Foundation Senior Staff Attorney Jennifer Lynch said the list demonstrates how difficult it is for consumer and privacy groups to get seats at the table for such discussions: “Industry representatives have the money and resources to capture the process and put in place rules that are discretionary and weak on privacy.” Lynch was happy, however, to see ACLU Senior Policy Analyst Jay Stanley, CDT Vice President-Policy Chris Calabrese and Common Sense Media Senior Counsel Ariel Fox Johnson included. She called them “strong and experienced advocates.”

The ACLU is concerned the conversation is "being coopted by a strong industry lobby, many of whom are pressing for policies that would weaken existing protections," Legislative Counsel Neema Singh Guliani emailed: Industry lobbyists far outnumber those representing consumer interests, and "government agencies need to take care that their policymaking doesn't get skewed in anti-consumer directions." Two other prominent privacy groups -- the Center for Digital Democracy and the Electronic Privacy Information Center -- didn’t comment. A CDT spokesman said the group attended one meeting with NTIA.

An NTIA spokeswoman wouldn’t comment on the makeup of the groups it communicated with, or whether the list encompasses all entities it consulted this summer. The agency labeled the FOIA documents as the first “interim response,” signaling more files to come. The purpose of the meetings “was to gather input from groups interested in providing their perspective on how the administration should approach privacy policy,” she emailed.

The rest of NTIA’s list includes former officials, academics and groups funded by both industry and consumer advocates. Among them was former Commerce Department Chief Privacy Officer Dan Caprio. Caprio, who advises executives on privacy and cybersecurity matters at the Providence Group, told us he didn't meet with NTIA on behalf of a client. The purpose, he said, was to help NTIA understand how a “strategic risk-based approach to privacy is preferable to a rules-based compliance approach.” Commerce and the White House have kept an “open door” with the “overarching principle of promoting privacy and prosperity,” he said.

If Congress moves forward with a federal privacy law, it should pre-empt state laws, Szabo said: “It doesn’t make sense to leave the door open to a patchwork of policies for the internet.” He argued against granting the FTC rulemaking authority under a new law, citing “abuse” of agency rulemaking authority that resulted in the 1975 Magnuson-Moss Warranty Act on consumer product warranties. NetChoice supports a self-regulatory approach similar to the framework for the Children's Online Privacy Protection Act.

NTIA met with Future of Privacy Forum (FPF), which is supported by industry, privacy advocates and academics. Federal pre-emption for a U.S. privacy law is a “core political driver,” FPF Vice President-Policy John Verdi told us, saying the FTC should have direct fining authority. The agency also should have a mechanism for implementing and defining a new statute, he said, questioning whether consensus would allow rulemaking authority to be that mechanism.

Describing a meeting between BSA and NTIA, Director-Policy Shaundra Watson said most of what was discussed was addressed in the agency’s request for comments. If lawmakers craft a strong, robust federal privacy law, it should pre-empt state laws, she told us, saying industry’s intention isn't to weaken regional regulations. BSA supports FTC civil penalty authority.

Intel supports a comprehensive U.S. privacy law, a spokesman said. “We plan to describe the elements of that bill when we submit written feedback on NTIA’s request for comments on developing the administration’s approach to consumer privacy.” Intel’s group at NTIA included Global Director-Privacy Policy Riccardo Masucci.

Microsoft’s team meeting with the agency included Senior Policy Counsel Frank Torres and Corporate Vice President Julie Brill, a former FTC member. Industry-aligned Tech Freedom and American Enterprise Institute scholar Roslyn Layton also were involved in the meetings. One administration official listed was Abigail Slater, White House National Economic Council special assistant to the president for tech, telecom and cyber policy. Documents show software company Rapid7, Salesforce and the financial services industry also arranged meetings with NTIA officials, as did Wilkinson Barker privacy attorney Aaron Burstein.