Concerns over online access to personal and private
information have quickly moved the issue to the forefront of
Internet-related activities in Congress. Representative Asa
Hutchinson (R-AR) has introduced the Privacy Commission Act (H.R.
4049) specifically to create a Commission for the Comprehensive
Study of Privacy Protection. This 17-member bipartisan commission
would examine federal policies that affect personal privacy as well
as the overall issue of online privacy in today's rapidly expanding
Creating such a commission would be an
important first step for Congress in addressing these issues.
Beyond this step, however, Congress should exercise caution in
responding to concerns about online access to personal information.
Current self-regulatory privacy policies developed and implemented
by business and industry are working, and the commission would
provide a foundation for the objective examination of other privacy
issues. It might well also constrain the zeal of those in the
regulatory community who want to regulate online activities now
before the facts are in.
Hutchinson privacy commission proposal offers a more enlightened
approach--based on a thorough study of the current situation--that
would provide policymakers with the necessary analysis on which to
base future decisions about online privacy and subsequent Internet
regulation. Privacy issues are multi-dimensional and differ greatly
by industry sector and complexity. Congress should not rush to
address one area of the privacy debate in a way that could have
unintended effects on other areas of the Internet economy.
Congress and the Administration should
recognize that the scope of a privacy commission's work will be
central to its findings and that the fluid Internet environment
could make some of its recommendations immediately obsolete. Thus,
while creating the Hutchinson privacy commission would be a step in
the right direction, strengthening a few provisions in H.R. 4049
would provide commission members with the opportunity to develop
recommendations that are timely, comprehensive, and inclusive, and
enable them to avoid the pitfalls previous commissions
strengthen H.R. 4049, Congress should:
Require the commission to include a
member of the academic community.
Past congressionally established commissions often included an
academic with expertise in a particular subject. The proposed
commission would not. At least one member of this commission should
represent the academic community with expertise in both
government-to-citizen privacy policies and business-to-consumer
Ensure that small business is
Online privacy policies affect all levels of government as well as
all types of businesses. One valuable lesson from the recently
completed Internet Tax Commission (ITC) is that small business
needs to have its interests represented on commissions dealing with
e-commerce. While state and local governments were more than
adequately represented on the ITC, small business was not. The
Hutchinson commission should include several small Internet
business representatives, or at least a member of a trade
association that represents their interests.
Reduce the number of Administration
representatives on the commission.
The federal government's self-serving bias for regulation could
inhibit debate and jeopardize any real consensus the commission
might attain on privacy issues. Moreover, the explosive growth of
e-commerce has occurred with little to no government intervention
in the market. Simply put, market forces, not the federal
government, created the new economy. Thus, the number of
Administration representatives should not overshadow the number of
business representatives on the commission. The number of four
stipulated in H.R. 4049 should be reduced, preferably to one but no
more than two.
Provide logistical and administrative
Commissions need logistical and administrative support to proceed
in an efficient and effective manner. Members of the ITC spent
several meetings just debating how to support their efforts, and
months of fruitless administrative bickering passed before they got
down to the real work. To prevent a repeat of such problems, H.R.
4049 should ensure that there is adequate funding for the
commission's administrative functions and that decisions on
administrative matters can be made promptly.
- Establish voting procedures that
Both the ITC and the Medicare Commission encountered major
problems when Administration officials decided to abstain from
casting critical votes on important tax or health issues that
required a supermajority to be a formal recommendation to Congress.
Casting a vote would have established the Administration's position
on those issues. All Hutchinson commission recommendations would
require a simple majority. This, however, does not avoid the hazard
of members' refusing to vote. For internal decision-making
purposes, the commission should rely on a simple majority. To make
formal recommendations to Congress, however, it should adopt a
litmus test of 60 percent of votes cast to achieve a
supermajority. Those who have abstained from voting should not be
counted in the total.
For example, if a vote on a formal
recommendation to Congress required a supermajority of the
commission rather than a simple one, and four of the 17 members
abstained from voting while the remaining members voted 8 to 5 in
favor, the recommendation would not move forward. A supermajority
of 11 would not have been achieved. However, under a
60-percent-of-votes-cast litmus test, the supermajority would be
based on a quorum of 13. The 8 affirmative votes would constitute a
supermajority, allowing the recommendation to go to Congress. Those
who lacked the courage to vote on the measure would not be allowed
to undermine the will of the rest of the commission.
Strengthening H.R. 4049 in these ways
would enable the privacy commission to operate more efficiently and
effectively, and policymakers to gain a better understanding of
Internet privacy issues. A leap into online privacy regulation
without a thorough examination of the issues would be a mistake
that could injure the new economy for years by restraining Internet
innovation and creativity.
Scott C. Rayderis a former Senior
Technology Policy Analyst in the Thomas A. Roe Institute for
Economic Policy Studies at The Heritage Foundation.