Important Privacy-Related Developments On The Horizon


Early 2012 will likely see the publication of at least two important privacy-related documents: the final versions of the preliminary privacy Reports issued by the Federal Trade Commission and the Department of Commerce. One or both may call for new privacy laws at the federal level.

The FTC's December 2010 Report - "Protecting Consumer Privacy in an Era of Rapid Change" - proposed a new framework for the online and offline collection and use of consumer data comprised of the following three principles: (1) privacy by design, (2) simplified choice, and (3) greater transparency. In the preliminary Report, the FTC supported the development of a "Do Not Track" mechanism for online behavioral advertising that would enable people to avoid having their actions monitored online, a move the online advertising industry has opposed. The final version of the Report may confirm this position, and urge Congress to enact legislation in this area, or it may conclude that the self-regulatory framework is preferable but needs to be more robust.

The Department of Commerce's December 2010 Green Paper - "Commercial Data Privacy and Innovation in the Internet Economy: A Dynamic Policy Framework" - proposed the recognition of "baseline" consumer privacy rights, a new federal security breach notification law, the establishment of a federal Privacy Policy Office, more self-regulatory programs for various industries, more transparency in privacy notices, and more cooperation with other countries to harmonize international privacy standards. The Green Paper did not take positions on do-not-track or opt in/opt out regimes, two of the biggest issues in the online privacy debate.

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