Antitrust Law Daily Wrap Up, PRIVACY NEWS: Franken, consumer groups underwhelmed by White House privacy proposal, (Mar 3, 2015)

By Brian Hammond, TR Daily

The Obama administration's draft legislation to create a Consumer Privacy Bill of Rights would not go far enough, according to some critics, including Sen. Al Franken (D., Minn.), the Consumer Federation of America, and Consumers Union.

The draft legislation, released Friday afternoon, would rely on the use of enforceable codes of conduct developed for specific industries and contexts to ensure compliance with a Consumer Bill of Rights based on principles the administration outlined in 2012.

In a statement issued yesterday, Sen. Franken said the proposal does not go far enough to protect consumers' privacy. “I think all Americans have a fundamental right to privacy, and it's especially important in light of advancing technologies that continually threaten to outpace our laws,” said Sen. Franken, the ranking member of the Judiciary subcommittee on privacy, technology, and the law.

“I commend the President’s renewed interest in data privacy, because it’s important that we establish new measures to protect consumers,” Franken said. “But I have concerns that his proposal lacks the necessary teeth to hold companies accountable for their privacy policies and to ensure robust protections for consumers’ information. The American people deserve more meaningful control of their personal information, and they should be able to make informed decisions about who is getting their information and who it’s being shared with. The President’s proposal, unfortunately, doesn’t do that. It takes control away from consumers and puts it back in the hands of companies.”

Susan Grant, director-consumer protection at the Consumer Federation of America, called the discussion draft "disappointing."

"Despite its name, the bill would not provide consumers with clear, actionable rights concerning the collection and use of their personal information," Grant said. "Instead of putting consumers in control, it would allow businesses and organizations to decide what personal information they will collect, how they will use it, and what control, if any, they will give to consumers.

"Instead of treating privacy as a human right to be respected, the bill takes the approach that businesses and organizations should determine if their data practices pose risks of harm to consumers and, if they do, what steps to take address those risks," she added. "The bill would preempt stronger state privacy laws and make it harder for state authorities and the Federal Trade Commission to stop privacy abuses. It would also bar consumers from bringing their own lawsuits to protect their privacy. The bill would do little to change current practices and would actually weaken consumer privacy in the United States rather than strengthen it."

Grant also took aim at the proposal's plan to rely on a "multistakeholder process" convened by the National Telecommunications and Information Administration, criticizing the NTIA's handling of a similar process aimed at developing a voluntary code of conduct for the commercial use of facial recognition technology.

"Those of us from consumer and privacy groups who have participated in this process for more than a year now are very frustrated by the lopsidedness of the representation at the meetings and the unwillingness of businesses to agree to anything that would change their existing practices or that might constrain their future practices," she said. "Little progress has been made. Yet the Administration’s draft bill envisions that such processes will play a major role in setting specific obligations for companies and organizations."

In a release, Consumers Union said it was "glad the administration is recognizing the importance of consumer privacy," but it also called the proposal "disappointing."

“Under the bill, consumers would only have control of their own personal data if there is a risk of harm - not simply because they wish it to be private," the group said. "In addition, we're concerned that the bill does not include adequate safeguards to ensure that privacy codes of conduct adopted by companies will be sufficiently protective of someone's personal data. Lastly, the proposal would preempt stronger state privacy laws that already exist, and prevent states from taking action on their own to bolster privacy protections in the future.

“We look forward to working closely with the Administration and lawmakers in the weeks and months ahead to help develop legislation that will give consumers meaningful control over their personal information,” said Ellen Bloom, senior director of federal policy for Consumers Union, the advocacy arm of Consumer Reports.

Meanwhile, Computer & Communications Industry Association President and Chief Executive Officer Ed Black said, “Technology companies are aware that they must devise privacy policies acceptable to consumers in order to have broad public use of their products. While we are concerned the legislative proposal as released is not appropriately tailored to foster the innovative technologies that consumers demand, we look forward to constructively working with the Administration, Congress, and the many diverse stakeholders with privacy-related concerns to ensure the right balance is struck.”

News: Privacy