TechFreedom and ICLE File Joint Comments on the NTIA’s Inquiry into Big Data

Yesterday, TechFreedom and the International Center for Law & Economics (ICLE) filed joint comments with the National Telecommunications & Information Administration (NTIA), urging the Obama Administration to call on Congress to establish a temporary Privacy Law Modernization Commission modeled on the Antitrust Modernization Commission created in 2002. The comments respond to the NTIA’s inquiry into how the White House’s 2012 Consumer Privacy Bill of Rights could be implemented in legislation without jeopardizing the consumer benefits of Big Data.

“Over a year ago, the White House seemed on the verge of announcing new, legislative restrictions on how private companies use consumer data,” said TechFreedom President Berin Szoka. “Just then, after years of hand-wringing by a few activists over personalized marketing, Edward Snowden blew the whistle on the far greater problem: massive, covert surveillance of American citizens by their government. The Administration has spent the last year struggling to repair its credibility. Now it’s trying to focus the conversation back on the private sector with the ominous label of ‘Big Data.’”

“President Obama now faces a choice,” Szoka continued. “If he simply tries to do what he planned before the Snowden leaks and push new legislation, he’ll be remembered as the President who talked a big game about consumer privacy but produced just another bill that died in Congress, and pointed the finger at innovative private companies to deflect the furor over NSA surveillance. Or, he could actually get Congress to enact meaningful legislation by taking a comprehensive approach..

“First, he should embrace the bipartisan reforms currently on the table to solve three pressing problems: blanket surveillance, legal, unchecked surveillance programs, and law enforcement agencies’ warrantless access to private content and location data. But a host of other issues require both more careful study and a bipartisan consensus. So the Administration should urge Congress to establish a Privacy Law Modernization Commission to convene early next year.  With independent experts appointed by both parties, this Commission could finally forge a consensus about how to balance the benefits and risks of data across the board.”

“Before Congress can seriously consider new commercial privacy legislation, we need far better economic analysis of the trade-offs associated with restricting data-driven innovation,” said Ben Sperry, Associate Director of ICLE. “The Federal Trade Commission has talented economists, but has failed to apply their expertise to privacy and data security. Without sound economic analysis, regulation may do more harm than good, and regulators won’t know where to focus their efforts to best protect consumers.”

“Existing laws might well be inadequate to deal with some of the specific challenges raised by Big Data,” noted Szoka. “The FTC and Administration have largely dismissed existing laws.” Szoka pointed to the FTC’s recent “Data Broker” report, which offered, as its prime example of the need for new legislation, the possibility that advertising profiles used to tailor ads to motorcyclists might also be used in insurance determinations. The report failed, however, to mention that the FTC itself already regulates such uses under the Fair Credit Reporting Act of 1970.

“A Privacy Law Modernization Commission (PLMC) would kill three birds with one stone,” concluded Szoka. “With a clear Congressional mandate, the PLMC could work with the FTC to answer the economic and legal questions about where new commercial privacy legislation is actually needed and how best to write it. With bipartisan credibility and clear expertise, the PLMC’s recommendations could finally break fourteen years of gridlock on the question of whether and how to update America’s commercial privacy laws. Finally, the PLMC could do what Congress will never do on its own: systematically re-examine how we protect Americans’ privacy from their government.”

Read the full comments here. Find/share this announcement on Facebook or Twitter, and see TechFreedom and ICLE’s other work on Big Data and FTC reform, especially:

  • TF’s comments on the Office of Science and Technology Policy’s “Big Data” inquiry
  • An open letter from Stand Against Spying, a diverse coalition of over 20 organizations (including TechFreedom), calling for surveillance reform
  • TF and ICLE Event on FTC Reform and the agency’s use of economics in digital consumer protection cases