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New York Times Article Suggesting US Agencies' Conflict Over Privacy Future May Be Wide of the Mark

10 November 2010

The New York Times published a piece today with the headline "Stage Set for Showdown on Online Privacy," suggesting that the Department of Commerce and the Federal Trade Commission appear to be at odds over how to advance privacy in the United States.  It is true that the privacy community is awaiting two separate reports, the Commerce "Green Paper"  following a Notice of Inquiry on privacy and the FTC's Staff Report following the three privacy Roundtables, and no one knows exactly what the contents will be.  But for those of us following the situation here in DC, the Times piece suggesting conflict is at odds with other signals from Commerce and the FTC. 

Recall that David Vladeck recently previewed the major themes of the upcoming FTC Report at an IAPP gathering and said, on the issue of regulation vs. self-regulation, that the Commission has always supported self-regulation.   With respect to privacy and online advertising, he said  "I am disappointed in the progress of self-regulation". "Ad disclosures and icons are all good ideas, but implementation is very much a work in process."  He concluded that the Commission and the public may lose its patience with self-regulation if there is not better progress.   

Assistant Secretary of Commerce Larry Strickling addressed the global privacy commissioners conference in Jerusalem recently

First is the importance of trust.  It is imperative for the sustainability and continued growth of the Internet that we preserve the trust of all actors. For example, if users do not trust that their personal information is safe on the Internet, they will worry about using new services. If content providers do not trust that their content will be protected, they will threaten to stop putting it online.

Our approach, which we call Internet Policy 3.0, recognizes that the interplay among technical standards and design, multi-stakeholder institutions, voluntary best practices, and laws and regulations can ensure that the Internet continues to meet its economic and social potential. 

 The framework I have in mind would build on current successes with voluntary codes but provide a more accountable, institutional structure for the future.  (emphasis supplied)

The proffered approaches of the FTC and the Department of Commerce in the previews presented by the respective agencies' top officials seem remarkably similar.  The notion that the Obama Administration would stage a "showdown" with the FTC, whose leadership it appointed, seems far fetched.  But time will tell.

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