The Role of the Federal The Role of the Federal Government in Privacy PolicyGovernment in Privacy Policy

Professor Peter P. SwireProfessor Peter P. SwireThe Ohio State UniversityThe Ohio State University

Center for American ProgressCenter for American ProgressThe Privacy Symposium, Summer 2007The Privacy Symposium, Summer 2007

August 23, 2007 August 23, 2007

OverviewOverview

My backgroundMy background Privacy under Pres. (Bill) ClintonPrivacy under Pres. (Bill) Clinton

Role of the Chief Counselor for PrivacyRole of the Chief Counselor for Privacy Privacy under Pres. George W. BushPrivacy under Pres. George W. Bush What institutions and policies for the next What institutions and policies for the next

administration?administration?

My BackgroundMy Background

Law prof in 1990sLaw prof in 1990s Book on EU Directive & USBook on EU Directive & US

Chief Counselor for Privacy, US Office of Chief Counselor for Privacy, US Office of Management & Budget, 1999 to early 2001Management & Budget, 1999 to early 2001

Law prof again since early 2001Law prof again since early 2001 Senior Fellow, Center for American ProgressSenior Fellow, Center for American Progress Consultant to Morrison & Foerster, LLPConsultant to Morrison & Foerster, LLP Lots of privacy & security at Lots of privacy & security at

www.peterswire.netwww.peterswire.net

Privacy in Clinton YearsPrivacy in Clinton Years

1993: Information Superhighway1993: Information Superhighway FTC and “unfair & deceptive practices”FTC and “unfair & deceptive practices”

Cyberspace & privacy as new missions for the Cyberspace & privacy as new missions for the FTCFTC

Children’s Online Privacy Protection Act of 1998Children’s Online Privacy Protection Act of 1998 Gore speech 1998 – need a White House official Gore speech 1998 – need a White House official

for privacyfor privacy I started early 1999I started early 1999

Privacy in Federal GovernmentPrivacy in Federal Government

6/99 OMB memorandum to post clear privacy 6/99 OMB memorandum to post clear privacy policies on agency sitespolicies on agency sites

6/00 OMB memorandum presumption against 6/00 OMB memorandum presumption against cookies on federal sites & reports to OMB on cookies on federal sites & reports to OMB on privacy in the budget processprivacy in the budget process

12/00 OMB memorandum on agency data 12/00 OMB memorandum on agency data sharing, including push for privacy impact sharing, including push for privacy impact assessmentsassessments

Federal CIO Council privacy committeeFederal CIO Council privacy committee

Themes in Federal GovernmentThemes in Federal Government

Government should lead by exampleGovernment should lead by example Hard to push for strong web privacy unless Hard to push for strong web privacy unless

government agencies have good policiesgovernment agencies have good policies Government must respond to privacy Government must respond to privacy

crisescrises Cookies memo after drug czar site found with Cookies memo after drug czar site found with

cookiescookies FIDNet and how not to announce surveillance FIDNet and how not to announce surveillance

of all who come to federal web sitesof all who come to federal web sites

Medical PrivacyMedical Privacy

HIPAA statute in 1996HIPAA statute in 1996 Congressional deadline to write law by 8/99Congressional deadline to write law by 8/99 Proposed rule 10/99Proposed rule 10/99 52,000 comments by 2/0052,000 comments by 2/00 Final rule 12/00Final rule 12/00 Almost repealed 3/01Almost repealed 3/01 Modified final rule now in effectModified final rule now in effect

Changes in marketing & consentChanges in marketing & consent

Medical PrivacyMedical Privacy

My role as W.H. coordinator – focus especially on My role as W.H. coordinator – focus especially on the issues not solely within HHSthe issues not solely within HHS Law enforcementLaw enforcement PaymentsPayments Military, VA, State, Labor, etc.Military, VA, State, Labor, etc.

Executive Order 12/00: limits on using health Executive Order 12/00: limits on using health oversight records for law enforcementoversight records for law enforcement

Executive Order 2/00: genetic discriminationExecutive Order 2/00: genetic discrimination Now on verge of becoming statute for private Now on verge of becoming statute for private

sectorsector

Financial PrivacyFinancial Privacy Clinton speech 5/99Clinton speech 5/99

The previous year essentially no privacy in The previous year essentially no privacy in financial reform bill that almost passedfinancial reform bill that almost passed

House bill with half that 6/99House bill with half that 6/99 Significant Administration push for privacySignificant Administration push for privacy Gramm-Leach-Bliley 11/99Gramm-Leach-Bliley 11/99 Administration proposal for more, 4/00Administration proposal for more, 4/00 GLB rules, 2000GLB rules, 2000 Many banks now feel fortunate with the deal they Many banks now feel fortunate with the deal they

gotgot

Some Other Privacy ActionsSome Other Privacy Actions

Crypto policy change, 1999Crypto policy change, 1999 Safe Harbor with E.U., 2000Safe Harbor with E.U., 2000 Network advertising code, 2000Network advertising code, 2000 Bankruptcy and privacy study 1/01: public Bankruptcy and privacy study 1/01: public

records and privacy issuerecords and privacy issue National Academy of Sciences study on National Academy of Sciences study on

authentication & privacyauthentication & privacy Special report on national ID systemsSpecial report on national ID systems

Surveillance IssuesSurveillance Issues

In 2000, chaired W.H. working group on how to update In 2000, chaired W.H. working group on how to update surveillance law for Internet agesurveillance law for Internet age Proposed legislation summer 2000Proposed legislation summer 2000 Same issues as Patriot ActSame issues as Patriot Act

• That doubled/tripled new surveillance powersThat doubled/tripled new surveillance powers• Took out all our privacy proposals, notably to treat Took out all our privacy proposals, notably to treat

email content like phone callsemail content like phone calls In 2000, though, Republican Congress criticized us as In 2000, though, Republican Congress criticized us as

too surveillance-pronetoo surveillance-prone Would “privacy counselor” have chaired the effort under Would “privacy counselor” have chaired the effort under

Pres. Bush?Pres. Bush?

Contact InformationContact Information

Phone: (240) 994-4142Phone: (240) 994-4142 Email: Email: peter@peterswire.net Web: Web: www.peterswire.net ““Privacy & Information Sharing in the War Privacy & Information Sharing in the War

Against Terrorism” at Against Terrorism” at http://ssrn.com/abstract=899626