On December 16, 2010, the U.S. Department of Commerce released its report regarding online privacy. Entitled as the “Green Paper” on “Commercial Data Privacy and Innovation in the Internet Economy: A Dynamic Policy Framework,” the report outlines recommendations for a future framework of privacy based on a culmination of events, hearings and comments held by the Department of Commerce’s Internet Policy Task Force in which MRAp articipated and subsequently submitted comments regarding privacy practices of the survey and opinion research profession. The goal of the report is to provide consumers with a baseline set of privacy protection that are designed to promote trust, to provide online companies with greater consistency and uniformity in privacy requirements, and encourage global interoperability.

Overview of the Report
The report recommends the adoption of a comprehensive national framework for commercial data privacy. It outlines 10 recommendations that seeks to create a “dynamic framework” that is adaptable to changing technologies and market forces, which includes:

  1. Adoption of Baseline Fair Information Practice Principles—A Privacy Bill of Rights;
  2. Adoption of “High Priority” Fair Information Practice Principles;
  3. Adoption of Voluntary, Enforceable, FTC-Approved Privacy Codes of Conduct;
  4. Establishment of Commerce Department Privacy Policy Office;
  5. FTC Should Remain ‘Lead’ Consumer Privacy Enforcement Agency;
  6. Federal Government Should Continue to Encourage Global Interoperable Privacy Frameworks;
  7. Create a National Data Security Breach Notification Requirement;
  8. Baseline Privacy Framework Should Act in Concert Not Conflict with Existing Sectoral Privacy Laws;
  9. Framework Should Balance Federal Uniformity with  State Freedom to Act; and
  10. Administration Should Review the Electronic Communications Privacy Act Regarding Cloud Computing and Location-Based Services.

Among the key recommendations in the report are the proposal for the adoption of a set of Fair Information Privacy Principles that would be considered “a privacy bill of rights,” the development of self-regulatory programs and guidelines, including the development of voluntary industry privacy codes, the creation of a Privacy Policy Office within the Department of Commerce, consideration of national data breach legislation and the reform of the Electronic Communications Privacy Act.

Key Points of the Report
The Fair Information Privacy Principles proposed in the report would consist of enhanced transparency, reasonable data collection and use limitations of data and verifiable accountability. The report also supports the American approach to privacy regulation, but emphasized the importance of encouraging innovation and Internet commerce. The creation of the Privacy Policy Office within the Department of Commerce is to serve as a center of commercial data privacy expertise and coordinate the public-private efforts of drafting voluntary privacy codes of conduct. The Privacy Policy Office would also work with other federal agencies regarding commercial privacy issues, including the Federal Trade Commission and work on cooperation with international privacy enforcement authorities.

The report also suggests that any commercial data privacy framework should work in conjunction rather than pre-empt other current privacy laws and policies. The Department of Commerce report recommends a comprehensive commercial data security breach framework modeled on State data security breach laws.

Conclusion
The Department of Commerce report follows the report that was released by the Federal Trade Commission (FTC) on consumer privacy. The Commerce Department considers the report as a guideline for a new privacy framework to work in conjunction with the FTC privacy framework and report. Similar to the report filed by the FTC, The Department of Commerce is also seeking public comments on its report, including comments on the implementation of the Fair Information Privacy Principles and whether federal preemption state data security breach laws is appropriate. MRA will file comments with the Department of Commerce on the implications of their report and inquiries to the survey and opinion research profession.

Disclaimer: The information provided in this article is for guidance and informational purposes only. It is not intended to be a substitute for legal advice. MRA advises all parties to consult with private legal counsel regarding the interpretation and application of any laws to your business.