Transcript belair_3
Harvard Symposium Privacy and the 110th and 111th Congresses August 21, 2008 Congressional Privacy Policy Panel Robert R. Belair Oldaker, Biden & Belair Privacy Consulting Group Washington, DC [email protected] (202) 496-3445 Privacy and the 110th Congress • What privacy related legislation passed? – July 2007: Improving America’s Security Act (comparing biometric data from flight manifests with various watch lists) – January 2008: The National Instant Criminal Background Check System (NICS) Improvement Act – January 2008: Court Security Improvement Act (restricts public access to personal information about judges, prosecutors, witnesses, etc.) Privacy and the 110th Congress • What privacy related legislation passed? – May 2008: The Genetic Information Nondiscrimination Act of 2008 – June 2008: The Kendall Frederick Citizenship Assistance Act (privacy and security safeguards for electronic transmission of biometric information of soldiers seeking citizenship) – July 2008: Foreign Intelligence Surveillance Amendments Act of 2008 Privacy and the 110th Congress • What legislation did not pass but received serious consideration? – – – – – Numerous financial privacy bills Data breach bills Data broker bills ID theft bills Numerous background check bills, including National Child Protection Act reform Privacy and the 110th Congress • What legislation did not pass but received serious consideration? – Passport, VISA and other border and immigration related legislation with privacy, data and surveillance implications – Spyware legislation – Numerous health IT and electronic health record bills with privacy provisions and implications Privacy and the 110th Congress • What legislation did not pass but received serious consideration? – Numerous employment privacy bills including everify enhancement legislation – Federal agency acquisition of personal data products from data brokers – Federal agency privacy impact assessments; data breach and security requirements – Federal agency data mining Privacy and the 110th Congress • What types of privacy legislation did not receive serious consideration? – Insurance privacy legislation – Employment privacy legislation – Omnibus privacy legislation Privacy and the 110th Congress • What types of privacy legislation did not receive serious consideration? – Public records privacy legislation – Online privacy legislation including behavioral profiling and social networking legislation – Offshoring privacy legislation Privacy and the 110th Congress • What types of privacy legislation did not receive serious consideration? – Customer proprietary network information (CPNI) legislation – ID authentication legislation (REAL ID reform; TWIC reform; Hazmat; CFATS; national ID system) – Tracking legislation (GPS and auto black boxes) Privacy and the 110th Congress • What are the obstacles to enactment of privacy legislation? – Weak and unreliable political support – Relatively stronger political opposition – Jurisdictional complications Privacy and the 110th Congress • What are the obstacles to enactment of privacy legislation? – Relatively attractive alternatives • • • • State legislation State and federal regulatory action Litigation External pressure – advocacy groups, media, international pressure • Self-regulatory codes Privacy and the 111th Congress • Political environment – Democrats expecting to pick up 10 to15 House seats, 3 to 6 Senate seats – Presidential race remains a toss-up – With larger Democratic majorities and pent-up demand for privacy legislation, there is an expectation for heightened activity – But, all of the obstacles to enactment of privacy legislation will remain in place Privacy and the 111th Congress • Privacy topics likely to attract legislative activity – Health care reform legislation will require privacy action on electronic health records and, perhaps, HIPAA reform – Immigration reform will raise significant ID authentication and related privacy issues Privacy and the 111th Congress • Privacy topics likely to attract legislative activity – Numerous types of financial privacy issues will be likely to receive legislative attention – The use and availability of intelligence and surveillance type reports will be likely to receive legislative attention Privacy and the 111th Congress • Privacy topics likely to attract legislative activity – The role of the Federal Trade Commission as a privacy regulatory agency – Online privacy, behavioral profiling and social networking – The “unregulated” buckets of data – Public record data – Personal tracking data; video surveillance; GPS; and black boxes CONCLUSION • Privacy likely to remain a second tier public policy issue – Thus, congressional action usually requires an “action-forcing event” – comprehensive reform initiative in which privacy is embedded (such as health care reform) or some type of threatening/over-reacting initiative, such as DHS surveillance programs