NTIA Leads Privacy Bill of Rights Review in Light of `Big Data’ Trend

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The National Telecommunications and Information Administration announced that it is leading a review of a consumer privacy rights proposal unveiled by the White House in 2012.

NTIA, a division of the Department of Commerce, wants public input on whether the proposed consumer “privacy bill of rights” should be clarified or modified to better accommodate the benefits or risks of “big data,” among other questions, according to a notice released June 4.

“The Obama administration takes personal privacy very seriously, and we must ensure the necessary privacy protections along with big data developments,” Commerce Secretary Penny Pritzker said in a statement.

NTIA is expected to publish its notice in the Federal Register, and comments will then be due within 60 days, according to the statement.

The action stems from a big data review ordered by President Barack Obama earlier this year. At issue is the rapid growth of tools that allow organizations to collect and analyze vast amounts of information on consumers.

On May 1, the White House released a report with recommendations, such as having the Commerce Department draft legislative language for the administration's privacy bill, after exploring big data issues through a public comment process.

Flexibility of Proposal Questioned

The proposed privacy bill, as outlined in a 2012 paper, would give the Federal Trade Commission new authority to require U.S. businesses to abide by so-called fair information practice principles, such as being transparent about their data-collection practices and giving consumers the right to exercise control over their personal information.

The administration's big data report said that some privacy experts believe that fair information practice principles are flexible enough to support new and emerging uses of information, including big data. “Others, especially technologists, are less sure, as it is undeniable that big data challenges several of the key assumptions that underpin current privacy frameworks, especially around collection and use,” the report said. “These big data developments warrant consideration in the context of how to viably ensure privacy protection and what practical limits exist to the practice of notice and consent.”

The report defined big data as “large, diverse, complex, longitudinal, and/or distributed datasets generated from instruments, sensors, Internet transactions, email, video, click streams, and/or all other digital sources available today and in the future.”

The report noted, for example, that the largely unregulated “data broker” industry aggregates information on consumer activities online and offline to develop profiles that can be sold to third parties.

“These profiles can be exceptionally detailed, containing upwards of thousands of pieces of data,” the document said. “Some large data firms have profiles on hundreds of millions of consumers. They algorithmically analyze this information to segment customers into precise categories, often with illustrative names that help their business customers identify populations for targeted advertising.”

In the next two years, the big data technologies and services market is projected to continue its rapid growth, the report noted.

Christopher Wolf, a partner at Hogan Lovells LLP, told Bloomberg BNA that a review of the administration's proposed privacy bill may be in order in light of big data developments.

“It makes sense to get input from the many interested stakeholders on what a modern, durable and flexible privacy bill of rights might look like,” said Wolf, who also serves as co-chair of the Future of Privacy Forum, a think tank in Washington.

Privacy Advocates Skeptical

However, privacy and consumer advocacy groups were skeptical about the administration's announcement.

“While we're heartened at the Obama administration and NTIA's continued interest in privacy issues, this process must be on a faster track,” Chris Calabrese, legislative counsel for the American Civil Liberties Union, told Bloomberg BNA. “In the more than two years since the consumer privacy bill of rights was released, we haven't seen any movement—not even draft legislative language. In order for any public input to be meaningful, it must be followed by more than just another report.”

John Simpson, privacy director at Consumer Watchdog, said the NTIA process should not be used to further delay privacy protections, although he welcomed a discussion of big data issues.

“President Obama called for baseline privacy legislation more than two years ago, and legislation has yet to be introduced,” Simpson told Bloomberg BNA. “The administration should propose privacy legislation immediately.”

Jeff Chester, executive director of the Center for Digital Democracy, a Washington-based consumer advocacy group, said that legislative text is “way overdue.” He said the group is concerned about the potential for the White House proposal to be weakened, rather than strengthened, through the NTIA process.

“While asking questions is always good, we believe the ultimate objective of the Commerce Department is to help one of America's few growth industry's to largely continue without serious regulatory restraint,” he said in an e-mail.

Stuart Ingis, an attorney in the Washington office of Venable LLP and a counsel for the Digital Advertising Alliance (DAA), a consortium of leading U.S. marketing trade groups, said it will be important “not to pass legislation that could limit innovation just as we are at the dawn of big data and of the unprecedented innovation and benefits ahead of us.”

To contact the reporter on this story: Alexei Alexis in Washington at [email protected]

To contact the editor responsible for this story: Heather Rothman at [email protected]

Text of NTIA's request for comments can be found at: http://www.ntia.doc.gov/files/ntia/publications/big_data_rfc.pdf.

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