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Privacy will be one of the key issues for the next administration. Unfinished business from the 106th Congress includes financial privacy regulations, protections for electronic commerce, and the Federal Bureau of Investigation’s e-mail monitoring program. Plus, bipartisan support for new bills has emerged. So the next president will need a clear agenda ready to go. Consumers will press for new safeguards for electronic commerce. Marketing groups have resisted legislation thus far, and pushed instead several industry programs under the banner of “self-regulation.” Although progress was made over the past few years, the Federal Trade Commission concluded that legislation was necessary, and by the end of the 106th Congress, the Senate Commerce Committee was ready to move a bill. So the next president comes in when the debate has moved from whether to legislate to what to legislate. The key here will be the debate over the scope of “Fair Information Practices” — the privacy buzz phrase encompassing responsibilities for businesses that collect and use personal data. Businesses emphasize “notice” and “consent,” since those are the easy requirements, but consumer groups and Internet users will push for “access” to any data collected on them, as well as “use limitation” and “enforcement.” The new administration will face a federalism issue in this debate — whether to support preemption of state efforts to protect consumer privacy. Industry groups want a national standard that will keep the pesky state attorneys general in check. Consumers favor federal law that operates as a baseline and leaves states free to establish stronger safeguards. Traditionally, federal privacy laws have followed the baseline approach, but the interstate commerce claims surrounding e-commerce may buttress the business case. A separate question concerns enforcement of new laws. Here, industry will likely oppose a private right of action and hope that it can keep complaints bottled up at the FTC. Consumers will favor a private right of action, arguing that incentives are key to enforcement. Here the consumers may have the better side of the argument. The FTC has been slow to act on consumer privacy complaints, and legislators may be reluctant to significantly expand the agency’s budget and authority. Questions concerning high-tech law enforcement techniques will also raise issues for the next president. Bipartisan concern has been voiced about the FBI’s Carnivore program, which monitors private e-mail. At the end of the last session, congressional leaders urged the White House to suspend the plan. On a related front, there is support for amendments that would update the federal wiretap statute and create warrant requirements for searches of electronic records. The new administration should also decide how it will institutionalize privacy policy making. Former president George Bush put his domestic policy adviser in charge. President Bill Clinton created a spot within the Office of Management and Budget and looked to the FTC for enforcement. A bill to establish a privacy commission narrowly failed in the last Congress. There are important international dimensions to privacy. The United States and the European Union this year established a “safe harbor” arrangement that allows U.S. firms to enter European markets and collect data on European citizens. The Commerce Department will need to rally support from U.S. firms for the agreement or face possible trade battles with European governments. The president may also raise privacy at the G-8 meetings and in discussions with allies where questions about the Internet — bridging the digital divide and fighting cybercrime, for example — have become more frequent. The president may also decide whether to keep the Justice Department at the negotiating table on the Council of Europe Cyber Crime convention. Civil libertarians and businesses are concerned about a proposal to extend law enforcement authority, impose new obligations on Internet service providers, and threaten the privacy and free speech rights of Internet users. The president should also consider the information privacy philosophies of his judicial nominees. Conventional wisdom is that the courts have traditionally shown little interest in privacy claims, but that is changing. The Supreme Court is looking at four privacy cases this term. The first president of the twenty-first century is likely to have a big impact on the future of privacy in America for many years to come. Marc Rotenberg teaches information privacy law at the Georgetown University Law Center and is editor of “The Privacy Law Sourcebook.”

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