DOC National Telecommunications and Information Administration: Notice and Request for Public Comments

December 22, 2010 at 10:09 am | Posted in Aerospace Law Interfaces | Leave a comment

by Sara M. Langston with the blog faculty

Source: Federal Register

[Federal Register: December 21, 2010 (Volume 75, Number 244)]
[Page 80042-80044]
From the Federal Register Online via GPO Access []



Office of the Secretary

National Telecommunications and Information Administration

International Trade Administration

National Institute of Standards and Technology

[Docket No. 101214614-0614-01]
RIN 0660-XA22

Information Privacy and Innovation in the Internet Economy

AGENCY: Office of the Secretary, U.S. Department of Commerce; National
Telecommunications and Information Administration, U.S. Department of
Commerce; International Trade Administration, U.S. Department of
Commerce; National Institute of Standards and Technology, U.S.
Department of Commerce.

ACTION: Notice and request for public comments.


SUMMARY: The Department of Commerce’s Internet Policy Task Force is
conducting a comprehensive review of the nexus between privacy policy
and innovation in the Internet economy. On April 23, 2010, the
Department published a Notice of Inquiry seeking comment from all
Internet stakeholders on the impact of current privacy laws in the
United States and around the world on the pace of innovation in the
information economy. The Department now seeks further comment on its
report entitled, “Commercial Data Privacy and Innovation in the
Internet Economy: A Dynamic Policy Framework,” available at http://
. Through this Notice
requesting comments on the report, the Department hopes to spur further
discussion with Internet stakeholders that will lead to the development
of a series of Administration positions that will help develop an
action plan in this important area.

DATES: Comments are due on or before January 28, 2011.

ADDRESSES: Written comments may be submitted by mail to the National
Telecommunications and Information Administration, U.S. Department of
Commerce, 1401 Constitution Avenue, NW., Room 4725, Washington, DC
20230. Submissions may be in any of the following formats: HTML, ASCII,
Word, rtf, or pdf. Online submissions in electronic form may be sent to Paper

[[Page 80043]]

submissions should include a three and one-half inch computer diskette
or compact disc (CD). Diskettes or CDs should be labeled with the name
and organizational affiliation of the filer and the name of the word
processing program used to create the document. Comments will be posted

FOR FURTHER INFORMATION CONTACT: For questions about this Notice
contact: Aaron Burstein, Office of Policy Analysis and Development,
National Telecommunications and Information Administration, U.S.
Department of Commerce, 1401 Constitution Avenue, NW., Room 4725,
Washington, DC 20230; telephone (202) 482-1880; e-mail; or Manu Bhardwaj, Office of Policy Analysis and
Development, National Telecommunications and Information
Administration, U.S. Department of Commerce, 1401 Constitution Avenue,
NW., Washington, DC 20230; telephone (202) 482-4985; e-mail Please direct media inquires to NTIA’s Office
of Public Affairs at (202) 482-7002.

Recognizing the vital importance of the Internet to U.S.
innovation, prosperity, education, and political and cultural life, the
Department has made it a top priority to ensure that the Internet
remains open for innovation. The Department established the Internet
Policy Task Force to identify leading public policy and operational
challenges in the Internet environment. The Task Force leverages
expertise across many bureaus, including those responsible for domestic
and international information and communications technology policy,
international trade, cyber security standards and best practices,
intellectual property, business advocacy and export control.
Moreover, the Obama Administration has launched an initiative to
develop an interagency policy structure for commercial data privacy
issues. The Commerce Department’s General Counsel Cameron Kerry and the
Justice Department’s Assistant Attorney General for the Office of Legal
Policy Christopher H. Schroeder chair a recently launched subcommittee
of the National Science and Technology Council that the White House has
chartered to work on Privacy and Internet Policy issues. Through that
vehicle, the Administration is engaging agencies throughout the U.S.
Government in a conversation on commercial data privacy to ensure that
the Administration speaks with one voice and takes advantage of its
many areas of expertise to promote the development of strategic and
comprehensive Internet privacy policies.
Background: The Department has launched the Privacy and Innovation
Initiative to identify policies that will enhance: (1) The clarity,
transparency, scalability and flexibility needed to foster innovation
in the information economy; and (2) the public confidence necessary for
full citizen participation with the Internet. On April 23, 2010, the
Department published a Notice of Inquiry seeking public comment from
all Internet stakeholders, including the commercial, academic and civil
society sectors, on the impact of current privacy laws in the United
States and around the world on the pace of innovation in the
information economy.\1\ Through that Notice of Inquiry, the Department
sought to understand whether current privacy laws serve consumer
interests and fundamental democratic values. The Department also held a
symposium on May 7, 2010, to discuss stakeholder views and to
facilitate further public discussion on privacy policy in the United

\1\ Notice of Inquiry, Information Privacy and Innovation in the
Internet Economy, 75 FR 21226 (Apr. 23, 2010), available at http://
Comments received in response to this Notice of Inquiry are posted
\2\ The Public Meeting Notice, 75 FR 19942 (Apr. 16, 2010), and
the meeting agenda are available at

The Department has now prepared a report, entitled “Commercial
Data Privacy and Innovation in the Internet Economy: A Dynamic Policy
Framework,” as a vehicle to spur further discussion with Internet
stakeholders on this important area of policy development.\3\

\3\ The report is available at

Request for Comment: This Notice seeks input on the report. The
questions below, which also appear in Appendix A of the report, are
intended to assist in identifying issues. They should not be construed
as a limitation on comments that parties may submit. Comments that
contain references, studies, research and other empirical data that are
not widely published should include copies of the referenced materials
with the submitted comments.
(1) Should baseline commercial data privacy principles, such as
comprehensive FIPPs, be enacted by statute or other means, to address
how current privacy law is enforced?
(2) How should baseline privacy principles be enforced? Should they
be enforced by non-governmental entities in addition to being the basis
for FTC enforcement actions?
(3) As policymakers consider baseline commercial data privacy
legislation, should they seek to grant the FTC the authority to issue
more detailed rule? What criteria are useful for deciding which FIPPs
require further specification through rulemaking under the
Administrative Procedure Act?
(4) Should baseline commercial data privacy legislation include a
private right of action?
(5) What is the best way of promoting transparency so as to promote
informed choices? The Task Force is especially interested in comments
that address the benefits and drawbacks of legislative, regulatory, and
voluntary private sector approaches to promoting transparency.
(6) What incentives could be provided to encourage the development
and adoption of practical mechanisms to protect consumer privacy, such
as PIAs, to bring about clearer descriptions of an organization’s data
collection, use, and disclosure practices?
(7) What are the elements of a meaningful PIA in the commercial
context? Who should define these elements?
(8) What processes and information would be useful to assess
whether PIAs are effective in helping companies to identify, evaluate,
and address commercial data privacy issues?
(9) Should there be a requirement to publish PIAs in a standardized
and/or machine-readable format?
(10) What are consumers’ and companies’ experiences with systems
that display information about companies’ privacy practices in contexts
other than privacy policies?
(11) What are the relative advantages and disadvantages of
different transparency-enhancing techniques in an online world that
typically involves data from multiple sources being presented through a
single user interface?
(12) Do these (dis)advantages change when one considers the
increasing use of devices with more limited user interface options?
(13) Are purpose specifications a necessary or important method for
protecting commercial privacy?
(14) Currently, how common are purpose specification clauses in
commercial privacy policies?
(15) Do industry best practices concerning purpose specification
and use limitations exist? If not, how could their development be

[[Page 80044]]

(16) What incentives could be provided to encourage companies to
state clear, specific purposes for using personal information?
(17) How should purpose specifications be implemented and enforced?
(18) How can purpose specifications and use limitations be changed
to meet changing circumstances?
(19) Who should be responsible for demonstrating that a private
sector organization’s data use is consistent with its obligations? What
steps should be taken if inconsistencies are found?
(20) Are technologies available to allow consumers to verify that
their personal information is used in ways that are consistent with
their expectations?
(21) Are technologies available to help companies monitor their
data use, to support internal accountability mechanisms?
(22) How should performance against stated policies and practices
be assessed?
(23) What incentives could be provided to encourage companies to
adopt technologies that would facilitate audits of information use
against the company’s stated purposes and use limitations?
(24) Should the FTC be given rulemaking authority triggered by
failure of a multi-stakeholder process to produce a voluntary
enforceable code within a specified time period?
(25) How can the Commerce Department best encourage the discussion
and development of technologies such as “Do Not Track”?
(26) Under what circumstances should the PPO recommend to the
Administration that new policies are needed to address failure by a
multi-stakeholder process to produce an approved code of conduct?
(27) How can cooperation be fostered between the National
Association of Attorneys General, or similar entities, and the PPO?
(28) Do FIPPs require further regulatory elaboration to enforce, or
are they sufficient on their own?
(29) What should be the scope of FTC rulemaking authority?
(30) Should FIPPs be considered an independent basis for FTC
enforcement, or should FTC privacy investigations still be conducted
under Federal Trade Commission Act Section 5 “unfair and deceptive”
jurisdiction, buttressed by the explicit articulation of the FIPPs?
(31) Should non-governmental entities supplement FTC enforcement of
voluntary codes?
(32) At what point in the development and of a voluntary,
enforceable code of conduct should the FTC review it for approval?
Potential options include providing an ex ante “seal of approval,”
delaying approval until the code is in use for a specific amount of
time, and delaying approval until enforcement action is taken against
the code.
(33) What steps or conditions are necessary to make a company’s
commitment to follow a code of conduct enforceable?
(34) What factors should breach notification be predicated upon
(e.g., a risk assessment of the potential harm from the breach, a
specific threshold such as number of records, etc.)?
(35) Are there lessons from sector-specific privacy laws–their
development, their contents, or their enforcement–that could inform
U.S. commercial data privacy policy?
(36) Should a preemption provision of national FIPPs-based
commercial data privacy policy be narrowly tailored to apply to
specific practices or subject matter, leaving states free to regulate
emerging technologies? Or should national policy, in the case of
legislation, contain a broad preemption provision?
(37) How could a preemption provision ensure that federal law is no
less protective than any existing state laws? What are useful criteria
for comparatively assessing how protective different laws are?
(38) To what extent should state Attorneys General be empowered to
enforce national commercial data privacy legislation?
(39) Should national FIPPs-based commercial data privacy
legislation preempt state unfair and deceptive trade practices laws?
(40) The Task Force seeks case studies and statistics that provide
evidence of concern–or comments explaining why concerns are
unwarranted–about cloud computing data privacy and security in the
commercial context. We also seek data that links any such concerns to
decisions to adopt, or refrain from adopting, cloud computing services.
(41) The Task Force also seeks input on whether the current legal
protections for transactional information and location information
raise questions about what commercial data privacy expectations are
reasonable and whether additional protections should be mandated by
law. The Task Force also invites comments that discuss whether privacy
protections for access to location information need clarification in
order to facilitate the development, deployment and widespread adoption
of new location-based services.
(42) The Task Force seeks information from the law enforcement
community regarding the use of ECPA today and how investigations might
be affected by proposed amendments to ECPA’s provisions.

Dated: December 16, 2010.
Gary Locke,
Secretary of Commerce.

Lawrence E. Strickling,
Assistant Secretary for Communications and Information.

Francisco J. S[aacute]nchez,
Under Secretary of Commerce for International Trade.

Patrick Gallagher,
Director, National Institute of Standards and Technology.
[FR Doc. 2010-31971 Filed 12-20-10; 8:45 am]

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