Sen. John Kerry (D-Mass.) and Sen. John McCain (R-Ariz.) Tuesday introduced their bill to protect online--and offline--privacy. It would include a combination opt-out/ opt-in regime for the use of online surfer's info, opt-out for info used in behavioral targeted marketing, opt-in for sharing sensitive personal info or changes in privacy policies.
S. 325, The Commercial Privacy Bill of Rights Act of 2011,
establishes a framework to protect the personal information of all Americans
both online and offline. A draft of the bill has been circulating for several
Kerry signaled last summer the bill was coming.
The Commerce Department has recommended the Bill of Rights approach.
Commerce General Counsel Cameron Kerry, John Kerry's brother, was one of the
lead players in formulating that approach.
The goal is to come up with enforceable voluntary privacy
codes of conduct, with the Federal Trade Commission overseeing
The senators' bill of rights would include the right "secutiry and accountability," the right to "notice and participation' and rights to "data minimization, constraints on distribution, and data integrity.
Included in the notice and accountability section are clear notice and an opt-out regime for behavioral targeted marketing info shared with third parties and an opt-in regime for sensitive personally indentifiable info--other than for transactions or services requested by the individual--and for any material change in privacy protection practices.
A coalition of privacy advocates including Consumer Watchdog,
the Center for Digital Democracy, and Consumer Action, said Tuesday that the
bill needs to be "significantly strengthened" before they could
The bill precludes a private right of action, barring civil suits for violations of the privacy bill of rights. Amy Mushahwar, an attorney with Reed Smith, said that was avoiding past mistakes. "The aftermath of the Telephone Consumer Protection Act clearly shows that consumer class actions rarely benefit anyone," she said
Commerce Secretary Gary Locke gave a shout out to the Senators for including Commerce recommendations.
"The Administration has called for privacy legislation that includes a consumer bill of rights to better protect privacy online and provide stronger enforcement, as well as preserve the Internet as an engine for innovation, jobs and economic growth," he said. "While we are still reviewing the bill introduced today, we are pleased that it incorporates key principles the Commerce Department recommended in its privacy report and look forward to working with Congress as legislation moves forward."
"We appreciate the efforts of Senators Kerry and McCain to draft legislation that appropriately focuses attention on the need for a level playing field with respect to privacy regulation," said the National Cable & Telecommunications Association in a statement. "While further review is warranted to ensure that such legislation not only addresses reasonable privacy interests but also supports a healthy marketplace for content creation and digital services, we are encouraged by the bill's technology-neutral approach that attempts to eliminate duplicative regulatory regimes."