April 14, 2011 – “The Commercial Privacy Bill of Rights Act of 2011,” introduced Tuesday by Sen. John Kerry (D-Mass.) and Sen. John McCain (R-Ariz.), would establish a framework to protect consumer information online but stops short of calling for a “Do Not Track” provision that has been the hallmark of other recently proposed legislation.

“When the bill comes to the Senate floor, there will be amendments, and someone may offer an amendment on [Do Not Track],” Kerry said at an April 12 press conference to announce the bill. However, he indicated that such a provision was excluded because it affected industry support for the legislation and added that he believes “the robustness of the opt-out” set forth in the bill “will answer concerns about Do Not Track.”

The Coalition for Healthcare Communication opposes mandatory Do Not Track provisions. The Coalition believes that consumer privacy and robust Internet commerce is better served by self-regulation enabling easy consumer opt-outs of unwanted tracking and marketing. “The Coalition and the 4As have led the development and implementation of a voluntary program – www.AboutAds.info – which is building a system to help Web users understand when they are being tracked online and allows them to opt out as needed,” said John Kamp, Coalition executive director. “We’re delighted the draft bill recognizes this effort.”

In crafting the bill (see Commercial Privacy Bill of Rights Text), which would put in place rules to regulate the collection, use and dissemination of consumer data and guide the Federal Trade Commission (FTC) in enforcing such protections, Kerry and McCain sought to strike a balance between consumer protections and the value of online advertising, Kerry said at the press conference.

“Many consumers enjoy the ability to receive targeted advertisements or visit Web sites that are free because they are completely ad-supported, but consumers must have control over how their data is used,” Kerry said. “We believe consumers and businesses will benefit from having a framework” for that communication and information exchange.

McCain noted in a statement that the bill “does not allow for the collection and sharing of private data by businesses that have no relationship to the consumer for purposes other than advertising and marketing. It is this practice that American consumers reject as an unreasonable invasion of privacy.”

Kerry also made clear that business interests were considered as well as consumer interests. “We produced this legislation with great sensitivity to the marketplace and to the economy,” he said. “Plenty of companies collect data and use it with high ethical standards and they use that data to innovate and tailor the services that they deliver to the clients they serve,” he added. 

Specifically, the bill sets forth the following consumer privacy rights:

• The right to security and accountability: collectors of information must implement security measures to protect the information they collect and maintain;
• The right to notice, consent, access and correction of information; and
• The right to data minimization, constraints on distribution, and data integrity.

The Safe Harbor provision defined in the bill would allow the FTC to approve nongovernmental organizations to oversee voluntary safe harbor programs that would have to achieve protections at least as rigorous as those enumerated in the bill. Incentives for enrolling in a safe harbor program would include allowing safe harbor participants to design or customize procedures for compliance and to be exempt from some of the bill’s requirements.

“If we have to have legislation in this area,” Kamp said, “the Kerry/McCain bill’s safe harbor provision at least would allow our self-regulatory program to move forward.”

Recognizing that many companies are making significant investments in consumer privacy protections even in the absence of new laws, Kerry said that forging ahead in a collaborative manner shows that industry “knows that [consumer privacy protection] doesn’t just make business sense – it’s the right thing to do.”