Rep. Markey Proposes Federal Regulation to Protect Online Privacy

(April 7, 1999) Rep. Edward Markey proposed new federal legislation of electronic commerce companies for the purpose of protecting the privacy of consumers. He was a keynote speaker at the Computer, Freedom & Privacy 1999 convention in Washington DC.

Rep. Edward Markey (D-MA) spoke at the annual Association for Computer Manufacturing conference in Washington DC on Wednesday morning, April 7. The title of the conference this year is "Computers, Freedom & Privacy 1999."

Rep. Markey has represented the Massachusetts 7th District (northwest suburbs of Boston) since 1976. He is the ranking minority member of the House Commerce Committee's Telecommunications Subcommittee, which has jurisdiction over much legislation that affects the computer and Internet industries. He usually scores nearly 100% on ratings published by liberal interest groups. He scored 60% on Tech Law Journal's Congressional Scorecard 1998, which rated all members of Congress on their support for the high tech agenda.

Rep. Markey

"As all of us become ever more digital in how we work and play, information about us will become more detailed, more personal in nature. And the ability to create and compile and distribute digital dossiers on each of us will become greatly facilitated," said Rep. Markey. "My longstanding interest in privacy comes from my belief that privacy protection is part and parcel of exercising basic civic freedoms, and utterly interwoven in our self-identity as Americans. To my mind, losing our privacy altogether would be tantamount to losing our freedom."

"We need rules," Rep. Markey repeated four times in his address.

"I will be introducing an updated privacy bill of rights legislative initiative in the coming weeks," said Rep. Markey. He also encouraged the members of the audience to lobby the Congress on behalf of privacy legislation: "contact every Congressional office over and over again ..."

Rep. Markey made clear his disapproval of the current policy of industry self-regulation. While he paid lip service to the phrase "self-regulation," he also advocated new federal legislation that would mandate privacy practices, and give enforcement authority to the Federal Trade Commission.

Rep. Markey stated:

"We have got to address this issue. The way to do so is with rules covering all companies, and having the FTC enforce them. My belief is that industry self-regulation is clearly going to be part of any comprehensive privacy policy for the United States. ... But no consumers should be completely bereft of any basic privacy protection when they visit a site. And again, although I have long been a big believer in utilizing technology to solve some of the problems that technology creates, I don't believe at this time that technological tools will be ubiquitously available and affordable, or universally honored by information hunters, and data gatherers, to solve the problem through technology alone. Our national privacy policy must, and I believe inevitably will, include a governmental role. Congress can put rules on the books in a way that factors in new technology, that encompasses what industry self-regulation can offer ..."

While Rep. Markey did not describe in detail what the new legislation should provide, he did state that a necessary element of such legislation would be that web sites must obtain consent. He stated:

"In such a context, merely informing consumers that a site may have already gathered personal information electronically, and providing notice about how it intends to use such information, is unacceptable. That is like saying burglary is OK, as long a the thief leaves behind a note clearly indicating what was stolen, and how the thief intends to use the stolen items. ... A key ingredient is missing: consumer consent. Notice alone is insufficient. Consumers must have an effective opportunity to grant or deny consent."

He also suggested that online companies should have a privacy policy posted in their web sites. "The company without a posted privacy policy is clearly being unfair to consumers," he said. Moreover, it must be "clear, conspicuous, concise, and common sense in its approach."

Rep. Markey was twice interrupted by strong applause, but not for any of his statements regarding the collection of personal data by web sites. Rather, he was applauded for saying that he would fight for encryption legislation, and again for poking fun at the way web sites hide and "lawyer up" their privacy policies.

He stated that "I will again battle on Capitol Hill for a strong pro-consumer encryption policy, and while, and why, I will continue my fight to put basic rules on the books, even as we promote new technologies in telecommunications competition."

He continued: "There is no question that my interest in making sure that strong encryption remains available to all Americans comes from the belief that people ought to be able to take steps themselves to protect their own data, conversations, or intellectual property." While he never mentioned encryption export restraints, his reference to "Americans" apparently excluded export restraints from the scope of his comments.

He also spoke about P3P. He said that "in the context of online transactional information, the platform for privacy preferences, or P3P, certainly holds much promise. P3P may someday avail consumers of an increased ability to signal electronically to sites on the web consumers desires as to how such entity should treat their personal information."

Rep. Markey also made several comments pertaining to the European Union's privacy policy. He began by discussing ethnic cleansing in the former Yugoslavia by the Serbs. Over there, he said, "information about who you could literally mean whether you safe, or are in grave personal peril."

"When people from the European Community tell us that they are, that they see privacy policy not merely through a prism of trade relations, but as a cultural issue, or as a sensitive social issue, or personal issue, we should listen to them. I personally agree with them."

But then, he also stated that "Our own privacy policy should reflect the socio-cultural mores of our American community, as much as our economic system."

Rep. Markey also devoted a considerable portion of his address to protecting consumers' medical records privacy, and financial privacy. He elaborated on a medical records privacy bill now pending in the Congress.