Congressman moves to make FTC enforce privacy, could impact Facebook's 'Like'

The United States does not officially have an office, bureau, or commission for the oversight of online privacy policies and the enforcement of privacy laws. However, the Federal Trade Commission has acted in that stead, although with limited tools. Yesterday, one of Congress' leading advocates for Internet users' rights published an early draft of legislation he intends to offer on the floor of the House of Representatives, presumably this term, that would not only give the FTC enforcement authority, but also fine-tune the terms the law uses with respect to how a service provider may infringe upon users' privacy rights.

Now, some of the same rights advocates who had earlier pleaded for action against questionable policy changes, especially recently at Facebook, are expressing outrage that such action is apparently coming from the government.

Not yet released on the House floor, the latest public draft, released yesterday by Rep. Rick Boucher (D - Va.) (PDF available here) would make it illegal for a Web service such as Facebook or Google to share any personal information about a user with any other entity, without obtaining the user's permission to share specifically that information with that other specific party. For example, for Google to share your YouTube video "likes" with Facebook, Google would have to ask you if you approve of YouTube sharing your "likes" with Facebook. Not sharing with "others," not with "advertising partners," but specifics. And conceivably, if Facebook intends to use that information to share with other specific parties, then Facebook has to obtain your permission to share the shared data with those parties specifically.

The key phrase here is express affirmative consent, and it's repeated throughout Boucher's legislation so there can be no doubt.

Congressman Rick Boucher (D - Va.)"A covered entity may not sell, share, or otherwise disclose covered information to an unaffiliated party without first obtaining the express affirmative consent of the individual to whom the covered information relates," the draft reads. "A covered entity that has obtained express affirmative consent from an individual must provide the individual with the opportunity, without charge, to withdraw such consent at any time thereafter."

Rep. Boucher doesn't leave any loopholes open with respect to covered information, either. Even a pseudonym or avatar photo is covered by this draft, along with e-mail address, any associated IP addresses (in case a service provider cares to try that old route), and anything else that a service provider may have on file that can be referenced in its database using the other information.

In a statement yesterday afternoon, Boucher said, "Online advertising supports much of the commercial content, applications and services that are available on the Internet today without charge, and this legislation will not disrupt this well established and successful business model. It simply extends to consumers important baseline privacy protections."

The FTC would be given the authority, under Boucher's draft, to regulate these privacy mandates using the biggest gun in its arsenal: the ability to declare a business' conduct an "unfair and deceptive act." States would have the right to enjoin their own fraud cases against accused violators to those the FTC had already initiated.

Just two weeks ago, a group of policy advocates led by the Center for Digital Democracy (not to be confused with the Center for Democracy & Technology) called on leading senators from both sides of the aisle to strengthen the regulatory and rulemaking authority of the FTC. Under current law drafted in the 1970s, the letter said, the FTC had to take 18 steps to satisfy the requirements of bureaucracy, when the system requires streamlining. The CDD was already on record as warning of the dangers of individuals and corporations blindly submitting to the practices and whims of a "Facebook Economy."
On Monday, the day before Boucher issued the initial draft, the CDD published a letter on this page that appears to have urged representatives to support a Boucher bill. But that very afternoon, after a press release from a business news group gave the rest of the media a heads-up on the Boucher draft's release, the CDD's executive director, Jeff Chester, told the National Journal before he even read the draft, that the bill represented "a blow to consumer protection."

That triggered a wave of dissent against the bill as expressed in a conference call yesterday with advocacy group leaders, attended by The Hill's Tony Romm. Leading the charge against the bill was an executive with the Interactive Advertising Bureau, who labeled it an "anti-stimulus" measure that would "kill hundreds of thousands of jobs in America," and lead to the eventual closure of newspapers and magazines, let alone Web sites.

Why the shift in the bill's status to "the dark side of the force?" The answer may have to do with advertising: The current draft makes certain exceptions for cases where Web sites share information with advertisers -- for instance, in cases where usage profiles are collected and shared between a Web site and an ad network. Those transactions may still happen, but as Boucher would have it, users would be given an explicit mechanism -- some kind of seal to click on, or hyperlink -- that enables them to opt out of such sharing at any time.

Now, all of a sudden, the same advocates who just two weeks ago called on the Justice Dept. to split Google into separate companies, in order to "actively restrain Google's broader ability to abuse both users and advertisers" -- in this case, Consumer Watchdog -- is now on record as opposing the interference by government into advertising practices, describing Boucher's bill as adopting an "archaic, bankrupt notice-and-consent regime that we all know does not work."

Other Washington publications cited any number of other policy groups, including the Electronic Frontier Foundation, as having joined the IAB in opposition to the Boucher draft. As of now, the EFF does not show an official statement on the matter being posted. However, one group that was mentioned elsewhere as joining the opposition -- the Center for Democracy & Technology -- has actually released a statement supporting the bill.

In that statement, CDT President Leslie Harris, says, "It has been almost a decade since Congress last considered consumer privacy legislation. Since that time, commercial collection and use of consumer information both online and off have increased exponentially. Consumers deserve comprehensive privacy protection. Today's release of the staff discussion draft of the Boucher-Stearns consumer privacy bill is the first step to achieving this important goal."

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