Cybersecurity Policy Report, Current, Former Commerce Officials Defend Approach to Privacy Rules, (Feb 4, 2013)

By Lynn Stanton

The Obama administration's call for a statutory "bill of rights" for consumer privacy, to be fleshed out in codes of conduct customized for various business sectors and enforceable by the Federal Trade Commission, reflects an attempt to walk a middle path, according to Danny Weitzner, a former Commerce Department and White House official who is now director of the Massachusetts Institute of Technology's Decentralized Information Group at its Computer Science and Artificial Intelligence Laboratory.

During a Jan. 29 Practising Law Institute seminar, Mr. Weitzner responded to a question about whether the context in which privacy actions are considered is static by saying, "The middle ground the Commerce Department is trying to strike is to say that we think having rules that sit there for years and years and years and never change [is not a good approach], but having a free-for-all … may not be a good approach either."

Commerce Department General Counsel Cameron Kerry said, "We have a common law system, and a common law system is essentially an iterative process. … You can't look at what's happened in this area over the past 15 or so years and say that expectations and standards have not evolved."

Mr. Kerry also said, "One of most difficult questions is how far we go in trying to put additional content into the consumer bill of rights." In the alternative, he said, Congress could delegate to the Federal Trade Commission the authority to adopt regulations that will add content to the bill of rights.

Moderator Howard Symons, chairman of the communications practice at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C., asked whether it was a sustainable privacy model to have "dozens" of different sector-specific privacy laws.

Mr. Weitzner responded that the Commerce Department had looked at a more comprehensive approach, but "even if that were politically possible, we thought that was a bad approach. We thought it was better to have laws that were tuned to the needs of specific situations."

The Commerce Department has held eight meetings with stakeholders to work on a code of conduct regarding privacy transparency for mobile apps, which is the department's first multistakeholder process on privacy issues, Mr. Kerry noted.

Mobile apps were not selected for the first process because of specific problems but because that area fit the desire for a "discrete" topic in a "greenfield," he said. He suggested that it could be a helpful process for app developers, since many of them are small companies that don't have privacy counsel.

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