June 2011

After a meeting June 28 between Sens. John Rockefeller (D-WV) and John Kerry (D-MA), it appears that the two may be one step closer to some consensus about their respective digital privacy bills.

Since May, when Sen Rockefeller introduced the Do Not Track Online Act one month after Sens Kerry and John McCain (R-AZ) introduced the Commercial Privacy Bill of Rights, neither bill has advanced in committee. Until a hearing before the Senate Commerce Committee, which Sen Rockefeller chairs, on June 29, neither Sen Rockefeller nor Sen Kerry had given any indication of whether the two bills would be combined or if one would supersede the other. While Sens Rockefeller and Kerry may be getting closer in resolving their two bills, lobbyists on the issue believe that neither bill has the vote to get through committee yet. And on the Republican side of the committee, Sen. Pat Toomey (R-PA) clearly was not convinced that either bill should move ahead. “I'm not sure there is a consensus of how to protect consumers or whether legislation is the best way to do so," Sen Toomey said. "We need to make sure we don't supply a solution in search of a problem."

“Poll after poll shows," said Chairman Rockefeller at the hearing "that Americans are increasingly concerned about their loss of privacy; and those same polls show that Americans don't know what to do about it. It is my intent to change that. I want ordinary consumers to know what is being done with their personal information, and I want to give them the power to do something about it.”

Federal Trade Commission member Julie Brill said, “New online business models such as online behavioral advertising, social networking, interactive gaming, and location-based services have complicated the privacy picture. In addition, the aggregation of data in both the online and offline worlds have in some instances led to increased opportunities for fraud. For instance, entities have used past transaction history gathered from both the online and offline world to sell “sucker lists” of consumers who may be susceptible to different types of fraud. In both the online and offline worlds, data security continues to be an issue. The FTC continues to tackle each of these issues through enforcement, education, and policy initiatives.”

“Privacy is a key ingredient for sustaining consumer trust, which in turn is critical to realize the full potential for innovation and the growth of the Internet. The technical and organizational complexity of this environment makes it challenging for individual consumers to understand and manage the uses of their personal data even if they are technically adept, ” said Department of Commerce General Counsel Cameron Kerry.

Federal Communications Commission General Counsel Austin Schlick testified, "Increased use of personal data in connection with new online and wireless applications is raising serious privacy and security concerns. As the FCC recognized in the National Broadband Plan, successfully addressing these concerns will be critical to increasing adoption and deployment of technologies that benefit consumers, government, and the economy."

“We continue to urge policymakers to examine ways to establish baseline federal legislation that will clearly articulate expectations for all organizations," Hewlett-Packard's Scott Taylor said. "As more and more services are delivered through multiple parties, such as applications on mobile devices, a consistent baseline standard will strengthen the chain of accountability and unify the divergent regulations currently in existence.”

"While we believe the Commercial Privacy Bill of Rights Act will provide consumers with meaningful choice over how their personal information is collected, transferred, and used, our organization has long supported giving consumers the possibility to opt out of online tracking. That is why Consumers Union also strongly supports Chairman Rockefeller’s Do-Not-Track Online Act of 2011 as an important and necessary component of consumer online privacy policy. The bill would lend the force of law to industry’s self-regulatory efforts by requiring that when a consumer using a Do-Not-Track tool expresses a preference to not be tracked online, companies must respect that choice," said Consumers Union's Ioana Rusu.

[Commentary] Almost two-thirds of Americans are using more than one computing device — defined as a smartphone, tablet, computer or netbook — according to a poll released this week. Unsurprisingly, the poll, which surveyed 2,000 Americans, found that 83 percent of people want access to their documents in the cloud. Of course they do. When 63 percent of the population has multiple computers and one-third has more than three, keeping them synced is a pain best left back in the early ’00s and late ’90s where it belongs. The survey, conducted by Harris Interactive on behalf of a company that provides presentation software in the cloud, helped crystallize a question: Do we only want dumb screens? By dumb screens I mean the ability to get whatever content and services you want over the web as opposed to stored on a hard drive or locked to a device. So far today, the answer is we want it both ways, but in the future I lean toward dumb terminals with one exception: the smartphone.

[Commentary] When the Supreme Court agreed to hear a challenge to a California law regulating the sale or rental of violent video games to minors, many First Amendment types like myself asked why. A key issue was whether the Court would carve out a new exception to the First Amendment. And the Court accepted the case just one week after it decided United States v. Stevens, in which it emphatically declined to create such a new exception for videos that show cruelty to animals. Why take another First Amendment case so soon? Perhaps the Court was signaling an intent to limit the Stevens decision to its particular facts (i.e., animal cruelty videos) by opening the door to regulation of violent video games marketed to human children. And if so, might the Court be opening the door to Federal Communications Commission regulation of violent programming? After the decision in Brown v. Entertainment Merchants Association, it appears the Court knew exactly what it was doing.

Brown struck down the video game law, relying on Stevens in refusing to create another new kind of unprotected speech, even as to minors. Broadcasters should be happy. The decision clearly implies that the FCC does NOT have the authority to regulate violent programming. The decision also leads me to conclude that, perhaps more importantly, the Court will side against the FCC in FCC v. Fox Television Stations,the indecency case it accepted on the same day Brown was decided.

Some of the world’s biggest film studios have launched an online piracy test case, arguing that the High Court should force BT to block access to a website which, they say, has “flagrantly infringed” their copyright. The studios, including Disney, Warner Bros, Paramount and 20th Century Fox, are seeking an order forcing BT to block the Newzbin website which, they claim, allows users unlawfully to download films. If successful, the case could set a legal precedent and allow content providers to secure greater co-operation from Internet service providers to tackle pirate sites.