Consumer Privacy Bill of Rights: Don’t Start Cheering Yet

NEW YORK (MainStreet) – It’s no secret advertisers love to collect data on you to create better-targeted ads, and efforts to allow consumers to keep their data private have relied largely on self-enforcement regimes. Now the government is getting involved. 

The Obama administration today released a Consumer Privacy Bill of Rights that lays out seven principles of privacy protections, including the right to exercise control over the dissemination of one’s data and the right to transparent privacy policies. The bill of rights is not legislation, acting more as a framework and statement of principles, but it sounds like the administration means business.

“The administration supports federal legislation that adopts the principles of the Consumer Privacy Bill of Rights,” reads the statement. For now, though, the bill of rights remains a statement of principles, and as such it’s difficult to say what the end result will be.

“The devil is going to be in the details,” acknowledges Paul Stephens, director of policy and advocacy for the nonprofit group Privacy Rights Clearinghouse. “It is a framework that certainly represents a decent start, but the key is going to be in three components,” he says, which include the legislation and regulations that grow out of it, and the enforcement thereof.

On paper, then, it looks fine as a work in progress, though Stephens does acknowledge that at least one provision – the “Respect for Context” clause, which says companies “will collect, use, and disclose personal data in ways that are consistent with the context in which consumers provide the data” – seems somewhat subjective and open for interpretation. As such, consumers concerned about their privacy will have to wait and see how this vague language of the bill of rights will translate into actionable regulation.

“Anybody can stand behind some broad principles about respecting privacy rights,” Reitman says. “Whether it’s enforceable is still a far-off issue.”

But even if the bill of rights doesn’t turn into a bill that enshrines consumers’ right to privacy, the administration has indicated it could bypass Congress altogether to create its own enforcement regime, noting that “even without legislation, the administration will convene multistakeholder processes that use these rights as a template for codes of conduct that are enforceable by the Federal Trade Commission.”

That’s a crucial statement, particularly as it pertains to allowing consumers to opt out of third-party tracking. Previous efforts to implement a “do not track” system akin to the “do not call” registry came under fire from privacy advocates for lacking any sort of formal enforcement regime. While Mozilla’s Firefox browser and Microsoft’s Internet Explorer browser incorporated a “do not track” feature that allowed users to opt out of tracking, the advertisers who actually signed on to the system simply promised to keep themselves in line. The president’s statement essentially says that even if Congress doesn’t pass legislation based on the proposed bill of rights, it will still take steps to create a formal code of conduct enforceable by the Federal Trade Commission.

“The way it is right now … it’s historically been self-enforcing,” says Rainey Reitman, activism director for the digital rights advocacy group the Electronic Frontier Foundation. “The White House statement today changes that, so it will be under the umbrella of FTC enforcement.”

Importantly, the changes were announced in conjunction with an about-face by a company that’s been making all the wrong headlines lately because of its privacy practices: Google. Unlike Mozilla and Microsoft, Google never implemented the system for its Chrome browser. But the company signed on to the program today, and if the FTC really intends to start enforcing the system with or without legislation, that means consumers will have an enforceable opt-out feature on the three major Web browsers.

But the “do not track” program is just one aspect of the overall regulation and enforcement regime that the White House clearly hopes will grow out of this bill of rights.