May 9, 2014

White House Tries to Shift Surveillance Debate

On May 1, the White House released a 68-page report addressing the commercial use of “Big Data” – the large, complex collections of information that governments and technology businesses collect and analyze. The report correctly recognizes the enormous benefits of data and technological advances in our daily lives. However, the administration’s report appears to be an excuse for more regulation and an attempt to shift the surveillance debate to the private sector.

The White House Advocates More Regulation, Less Innovation

The use of data by businesses can drive innovation, boost the economy, and help solve some of our greatest societal challenges. Despite acknowledging these benefits, the White House expressed “serious concerns” about the private sector’s data management practices. The administration’s report aims to revamp the current regulatory regime, making six policy recommendations — reviving some previous proposals and advancing new schemes:

  • Advancing the Consumer Privacy Bill of Rights
  • Passing legislation to create national data breach standard
  • Amending the Electronic Communications Privacy Act
  • Extending privacy protections to non-U.S. citizens
  • Examining data collected about students in educational environment
  • Expanding technical expertise to stop discrimination in digital world

The administration’s plan to impose more regulations is likely to hinder innovation.

The Consumer Data Privacy Framework Is Strong

Ensuring privacy protections for the American consumer is important, but regulations must be balanced with clear benefits and an actual need for those rules.

“[R]ules have gotten out of balance, placing unreasonable burdens on business—burdens that have stifled innovation and have had a chilling effect on growth and jobs.” – President Obama, Wall Street Journal, 1/18/2011

In the case of data privacy specifically, on February 23, 2012, the White House issued a report finding that “the consumer data privacy framework in the United States is, in fact, strong.” The report said that the existing structure “rests on fundamental privacy values, flexible and adaptable common law protections and consumer protection statutes, Federal Trade Commission (FTC) enforcement, and policy development that involves a broad array of stakeholders.” The report also pointed out that the current legal framework facilitates technological innovation. 

Every business in the United States is already required to comply with a comprehensive set of federal privacy laws and regulations, along with a variety of laws at the state level. Numerous privacy laws protect sensitive citizen and consumer data, including: the Children’s Online Privacy Protection Act of 1998; the Health Insurance Portability and Accountability Act of 1996; Gramm-Leach-Bliley; the Fair Credit Reporting Act; the Electronic Communications Privacy Act; the Communications Act; and the Telephone Consumer Protection Act of 1991. Regulators, including the FTC and state attorneys general, aggressively enforce the existing privacy rules. 

Accounting for Innovation

The current privacy framework appears to be working. Alan Raul, former vice chairman of the Privacy and Civil Liberties Oversight Board, wrote in a Politico op-ed on April 29, 2014, that the “United States already has a robust, highly adaptable regime for protecting people’s personal data and penalizing companies that abuse such information.” Adaptability, especially in the quickly evolving tech industry, is crucial.

Adjusting and adapting our laws to technological progress should be a consideration in crafting policy. There is room, for instance, to reform portions of the Electronic Communications Privacy Act, which was written in 1986. Reform should not be an exercise in needlessly adding new regulations to an already robust list of protections.

White House Seeks to Shift Attention

The White House report on Big Data was billed as the next chapter in the administration’s response to the government surveillance debate. Rather than address the government’s actions, however, the report attempts to shift the debate. It focuses not on the surveillance practices of the National Security Agency, but on how job creators and innovators in the private sector — such as Google, Twitter, and Facebook — manage and use commercial data.

Trying to distract attention from the NSA surveillance debate does nothing to resolve legitimate concerns and has the potential to harm the U.S. economy. According to a May 2, 2014, New York Times article, Silicon Valley thinks the administration missed the point. The tech industry says the biggest threat it faces “is the suspicion around the world that the NSA has built ‘back doors’ into American products.” The president’s proposals do nothing to help that situation.

U.S. companies are asking Washington to engage in a dialogue about the government’s data collection practices. The Obama administration is simply channeling public outrage into an opportunity to increase limitations on the private sector.

Issue Tags: Judiciary, Technology