The U.S. data privacy debate, in a nutshell

by Thompson Coburn LLP

Do you want a comprehensive overview of the data privacy debate in the United States? Well, the Government Accountability Office has written one — just for U.S. Sen. Jay Rockefeller (D-WV), his Senate Commerce Committee, and you. In one click, you can access 18 pages that review data privacy policy from A to Z.

The report, “Information Resellers: Consumer Privacy Framework Needs to Reflect Changes in Technology and the Marketplace,” steps into a little bit of advocacy, as the title suggests, but generally provides a succinct and reliable summary of U.S. privacy laws, what they cover, what they don’t cover, and what various parties are proposing should be covered.

The report was prepared in conjunction with the inquiry by Sen. Rockefeller’s committee into data collection for marketing purposes. Both the December 19, 2013, committee hearing and the committee’s staff report focus on that issue. The GAO report, with its broader focus, provides a useful overview of the circumstances that make data privacy such a bedeviling policy concern.

First, most of our current federal privacy laws predate the technologies that raise data privacy issues. As shown by the GAO’s timeline illustration, reproduced below, all major current privacy statutes predate key developments like behavioral advertising, location-based services, social media, mobile apps, and mobile payments. And even for technologies that have been around for a while, like the World Wide Web, we’re handling them under older statutes like the 1914 FTC Act and the landline telephone-era Electronic Communications Privacy Act of 1986.

Second, the newest technologies, especially mobile technologies, are driving the data privacy debate. The move of commerce and content to the Internet has led to new abilities to collect, collate, use and sell data, and new opportunities to use that data for innovative marketing and other services. Issues involving mobile apps, location tracking, and mobile payments are front and center. Technology truly has created a new data environment.

Third, there are serious concerns on all sides, and we need to be wary of simplistic, broad-brush solutions. While many privacy advocates seek comprehensive one-size-fits-all privacy laws, our history has favored more conservative sector-by-sector approaches, and a broad new law could seriously inhibit innovation and the beneficial uses of data. And while the business community generally favors self-regulatory approaches, the unprecedented technological developments, and the increasing recognition that old privacy laws are unsuited for modern issues, may force some new federal action — in which case businesses need to be involved in the debate so that their concerns are addressed. As just one example, different privacy rules should apply to business-to-business and business-to-consumer communications, as I advocated in an article in the National Law Journal earlier this year.

Finally, the report suggests that even the U.S. data privacy debate will increasingly look to international standards and privacy concepts. The report points to the Fair Information Practice Principles (FIPPs), which enjoy the endorsement of the Organisation for Economic Co-operation and Development, as the de facto international standard. And, in a lapse into advocacy, it suggests that “gaps exist” in U.S. privacy laws simply because our laws don’t embody all FIPPs. FIPPs are, and ought to be, debatable, but it is increasingly clear that they will be regular reference points in the debate. Similarly, notions like users’ ability to access, control and correct their personal data — rights recognized in Europe but not generally in the U.S. — will be discussed more and more here.

If you are interested in data privacy, the GAO report is a good start. Take advantage of it — as this debate continues, even a summary is going to take a lot more than 18 pages.

Privacy laws timeline - GAO

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Thompson Coburn LLP | Attorney Advertising

Written by:

Thompson Coburn LLP

Thompson Coburn LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.