United States: Privacy & Information Security Law Blog: CIPL Responds To NTIA Request For Comment On Developing The Administration's Approach To Consumer Privacy

The Centre for Information Policy Leadership ("CIPL") at Hunton Andrews Kurth LLP recently submitted formal comments to the U.S. Department of Commerce's National Telecommunications and Information Administration ("NTIA") in response to its request for public comments on developing the administration's approach to consumer privacy.

In its comments, CIPL commends NTIA for initiating a renewed national debate on updating the U.S. privacy framework, and notes that its approach—starting with the intended outcomes and goals of any privacy regime—is well suited to lay the foundation for a legislative proposal in the future.

Responding to the questions raised in the request for comment, CIPL makes the following observations and recommendations with regard to NTIA's intended core outcomes and the high level goals of any new U.S. privacy framework:

Privacy Outcomes

  • Transparency: CIPL agrees transparency should be a key outcome of any privacy framework and must be user-centric, contextual and tailored toward the specific audience and purpose. This can be achieved by implementing companywide privacy management and accountability frameworks.
  • Control: CIPL believes that control should be a component of a new privacy framework in contexts where it is appropriate, and should reference mechanisms that empower consumers beyond individual choice or consent. However, the framework's general focus should be putting the onus on organizations to use data responsibly and accountably to protect consumers from harm regardless of their individual level of engagement.
  • Reasonable Minimization: CIPL supports the inclusion of reasonable minimization as an outcome of a new data protection framework, and further agrees with NTIA's qualification that minimization should be reasonable and appropriate to the context and risk of privacy harm. These qualifiers are very important given the enormous potential of personal data for driving economic growth and societal benefits in the digital economy.
  • Security: CIPL fully agrees with the inclusion of security in the list of outcomes, and notes the importance of allowing organizations flexibility in determining security measures that are reasonable and appropriate to the context at hand. In addition, a security outcome should provide for the adoption of appropriate breach response measures (e.g., notification requirements) and should permit organizations to use personal data for the development and implementation of security tools and related legitimate purposes, such as incident prevention, detection and monitoring.
  • Access and Correction: While CIPL agrees that access, correction and deletion is an important outcome, such rights cannot be absolute and should not interfere with relevant obligations of an organization, other societal goals or legal rights of consumers and other third parties. Where exercising such rights would be inappropriate or impose unreasonable burdens on organizations, part of the solution lies in providing assurances to consumers that their personal information is protected by the full range of available accountability measures and will not be used for harmful purposes.
  • Risk Management: CIPL welcomes NTIA's characterization of risk management as the "core" of its approach to privacy protection. Identifying harms and addressing them specifically has the advantage of enabling organizations to prioritize their compliance measures and focus resources on what is most important, thereby strengthening both consumer privacy and organizations' ability to engage in legitimate and accountable uses of personal information. It also means that we do not need to establish set categories of so-called sensitive information or certain predetermined high-risk processing activities, as any actual sensitivity or high-risk character will be determined and addressed in each risk assessment process.
  • Accountability: CIPL strongly agrees with including accountability in the essential outcomes of a privacy framework. It is a key building block of modern data protection and is essential for the future of the digital society where laws alone cannot deliver timely, flexible and innovative solutions. CIPL recommends that NTIA clarify and elaborate upon this important concept in line with its globally accepted meaning, including in the APEC Privacy Framework and the GDPR, as well as other relevant international privacy regimes that incorporate this concept.
  • Complaint-handling and Redress: In addition to the above outcomes, CIPL recommends the additional outcome of complaint-handling and redress. Consumers should be able to expect that organizations are able to reliably, quickly and effectively respond to actionable complaints and provide redress where appropriate. As it is consumer-facing, it should be a separately stated outcome that consumers can expect from a privacy framework.

High-Level Goals for Federal Action

  • Harmonization: CIPL supports the effort to harmonize the U.S. privacy framework on the federal level, including through federal legislation that preempts inconsistent state privacy laws. CIPL recommends that NTIA clarify whether the proposed framework intends to cover employees, and suggests that a new framework should be focused on privacy in the consumer and commercial context and that the precise term "consumer" be defined to avoid legal uncertainty.
  • Legal Clarity and Flexibility to Innovate: Clarity and flexibility in a privacy framework can be achieved through an approach based on organizational accountability risk assessment. With respect to risk, agreement around methodologies for privacy assessments, guidance on types of risk and the sharing of organizational best practices can also significantly contribute to legal clarity without undermining the flexibility to innovate.
  • Comprehensive Application: CIPL supports a comprehensive baseline privacy law that applies to all organizations, preempts inconsistent state laws, amends or replaces inconsistent federal privacy laws where appropriate, and otherwise works with or around well-functioning existing sectoral laws.
  • Risk and Outcome-based Approach: CIPL agrees with the goal of creating a risk and outcome based approach to privacy regulation. Employing such an approach places the burden of protecting consumers directly where it belongs – on businesses that use personal data, rather than on consumers, who in an increasing number of contexts should not and realistically cannot be tasked with understanding in detail and managing for themselves complex data uses or constantly making choices about them.
  • Interoperability: Maximizing interoperability between different legal and privacy regimes should be a top priority goal for the United States. Any new privacy framework for the U.S. should continue to enable the free, responsible and accountable flow of data across borders.
  • Incentivizing Privacy Research: CIPL fully agrees with the goal of having the U.S. government encourage and incentivize research into and development of products and services that improve privacy protections. However, this goal should be broadened and amplified along the lines of the argument for incentivizing organizational accountability generally. This enables a race to the top whereby organizations not only strive to comply with the bare minimum of what is legally required but are incentivized and rewarded for heightened levels of organizational accountability that benefit all stakeholders.
  • FTC Enforcement: CIPL agrees that the Federal Trade Commission should be the principal federal agency to enforce any new comprehensive U.S. privacy legislation and should be appropriately resourced as such. Exactly how a new privacy framework and the FTC as the principal federal agency should interact with other federal functional regulators and sectoral privacy laws should be carefully considered and worked out with input from all relevant stakeholders.
  • Scalability: CIPL agrees that enforcement should be proportionate to the scale and scope of the information an organization is handling and should be outcome-based. With increased responsibilities under a broader privacy law, the FTC will have to ensure that its current approach is adapted to the changes in the scope and nature of its responsibilities.
  • Enabling Effective Use of Personal Information: In addition to the above goals for federal action, CIPL suggests the additional goal of enabling broad and effective uses of personal information for the benefit of economic development and societal progress, as well as for the benefit of individuals, particularly the data subjects. Due to their supervisory position, modern data protection and privacy enforcement authorities have the responsibility, in addition to protecting consumer privacy, to safeguard and facilitate the beneficial potential of such information and, therefore, the full range of responsible and accountable data uses.

Following consideration of the comments it receives, CIPL recommends that NTIA takes a holistic and deliberate approach toward developing a comprehensive privacy law that accomplishes the items discussed in the request for comment. One possible next step could be to actually articulate the outcomes and goals in draft legislative language to provide a clearer basis for further discussion on the precise elements and articulation of each of them. CIPL recommends an iterative process between NTIA and other public and private sector stakeholders towards that goal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions