[Federal Register Volume 75, Number 78 (Friday, April 23, 2010)]
[Pages 21226-21231]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9450]



Office of the Secretary

National Telecommunications and Information Administration

International Trade Administration

National Institute of Standards and Technology

[Docket No. 100402174-0175-01]
RIN 0660-XA12

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; and National Institute of Standards and Technology, U.S. 
Department of Commerce.

ACTION: Notice of Inquiry.


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. The Department seeks 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. The Department also seeks to 
understand whether current privacy laws serve consumer interests and 
fundamental democratic values. After analyzing the comments responding 
to this Notice, the Department intends to issue a report, which will 
contribute to the Administration's domestic policy and international 
engagement in the area of Internet privacy.

DATES: Comments are due on or before June 7, 2010.

ADDRESSES: Written comments may be submitted by mail to the National 
Telecommunications Administration at 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 privacy-noi-2010@ntia.doc.gov. Paper 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

[[Page 21227]]

program used to create the document. Comments will be posted at http://www.ntia.doc.gov/advisory/privacyinnovation.

FOR FURTHER INFORMATION CONTACT: For questions about this Notice 
contact: Joe Gattuso, 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 
jgattuso@ntia.doc.gov. Please direct media inquires to NTIA's Office of 
Public Affairs at (202) 482-7002.

SUPPLEMENTARY INFORMATION: 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 has created an 
Internet Policy Task Force whose mission is to identify leading public 
policy and operational challenges in the Internet environment. The Task 
Force leverages expertise across many bureaus at the Department, 
including those responsible for domestic and international information 
and communications technology policy, international trade, 
cybersecurity standards and best practices, intellectual property, 
business advocacy and export control. This is one in a series of 
inquiries from the Task Force. The Task Force is conducting similar 
reviews of cybersecurity, global free flow of information goods and 
services, and online copyright protection issues. The Task Force may 
explore additional areas in the future.
    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; (2) the public confidence necessary for 
full citizen participation with the Internet; and (3) uphold 
fundamental democratic values essential to the functioning of a free 
market and a free society.
    Innovation in the information economy continues to drive U.S. 
commerce. Entrepreneurs and innovators in the United States are 
developing novel information applications and creative ways of 
delivering existing goods and services via the Internet. American 
technology companies have created hundreds of thousands of new online 
applications, revolutionizing how consumers and businesses interact, 
transact, and use information. Beyond the boundaries of electronic 
commerce, the Internet is transforming critical sectors of the U.S. and 
global economy and society, such as health care, energy, education, the 
arts and political life. In all these sectors, proper use of personal 
information can play a critical, value-added role, so establishing 
consumer trust and assuring flexibility for innovators is vital.
    Recognizing that economic, social, and political participation in 
the Internet is essential for all citizens, the United States must 
establish an environment respectful of long-standing privacy principles 
and individual privacy expectations, even as they evolve.
    Contribution of this NOI to the Internet Policy Task Force: 
Responses to this Notice will assist the Task Force in preparing its 
report on Privacy and Innovation in the Information Economy. The 
purpose of this report will be to identify and evaluate privacy policy 
challenges, and to analyze various approaches to meet those challenges. 
The Task Force's report may include options and recommendations for 
general regulatory, legislative, self-regulatory and voluntary steps 
that will enhance privacy and innovation, though the Task Force does 
not expect to recommend detailed legislative or regulatory proposals at 
this point. The Task Force is hopeful that the dialogue launched here 
and the research conducted will contribute to Administration-wide 
policy positions and global privacy strategy.
    Contribution of Online Commerce to the U.S. Economy: Between 1999 
and 2007, the United States economy enjoyed an increase of over 500 
percent in business-to-consumer online commerce.\1\ Taking into account 
business-to-business transactions, online commerce in 2007 accounted 
for over $3 trillion dollars in revenue for U.S. companies.\2\ The 
economic benefits provided by the information economy increased even 
during our economic downturn. During 2008, industry analysts estimate 
that sales of the top 100 online retailers grew 14.3 percent.\3\ In 
contrast, the U.S. Census Bureau estimates a 0.9 percent decrease in 
total retail sales over that time period.\4\ In 2009, U.S. mobile 
commerce sales grew over 200 percent compared to the previous year, 
reaching $1.2 billion.\5\ Analysts expect this impressive growth to 
continue in 2010, projecting $2.4 billion in mobile commerce.\6\ Online 
sales growth and expanding information systems are creating new jobs 
focused on the information economy and directly impacting our economic 

    \1\ U.S. Census Bureau, ``E-Stats,'' May 28, 2009.
    \2\ Id.
    \3\ Mark Brohan, ``The Top 500 Guide,'' Internet Retailer, June 
    \4\ U.S. Census Bureau, ``Quarterly Retail E-Commerce Sales: 4th 
Quarter 2008,'' Feb. 16, 2010, Table 4.
    \5\ ``U.S. M-Commerce Sales to Hit $2.4 Billion This Year, ABI 
Research Says,'' Internet Retailer, Feb. 16, 2010.
    \6\ Id.

    In addition to the growth of online commerce, the Internet, the 
World Wide Web, and associated information systems have lead to an 
unprecedented growth in productivity over the last decade.\7\ More 
businesses are using the Internet to provide electronic records to 
customers and trading partners, and enterprises are shifting to a 
digital back office and greener business environment. Although this has 
spurred additional green innovation, the fact that increasingly more 
data is being stored electronically and aggregated creates new 
challenges in the privacy arena.

    \7\ Executive Office of the President of the United States, 
Council of Economic Advisors of the President, 2010 Economic Report 
of the President, at Chapter 10, Feb. 2010.

    Sustaining the growth of digital commerce and U.S. commerce 
generally will require continued innovation in how information is used 
and shared across the Internet. Commerce today depends on online 
communication and the transmission of significant amounts of data. Key 
to the current inquiry, the Department believes this development places 
data protection in a new light.
    The Nexus Between Privacy and Commerce, and the Department's Role: 
Consumers have expressed concern regarding new or unexpected uses of 
their personal information by online applications. Since Internet 
commerce is dependent on consumer participation, consumers must be able 
to trust that their personal information is protected online and 
securely maintained. At the same time, companies need clear policies 
that enable the continued development of new business models and the 
free flow of data across state and international borders in support of 
domestic and global trade. Our challenge is to align flexibility for 
innovators along with privacy protection.
    The Department has played an instrumental role in developing 
policies that have helped commerce over the Internet flourish. Over the 
past two decades, the National Telecommunications and Information 
Administration (NTIA), in its role as

[[Page 21228]]

principal adviser to the President on telecommunications policies, has 
worked closely with other parts of government on these issues.\8\ In 
1993, the White House formed the Information Infrastructure Task Force 
(White House Task Force), chaired by the Secretary of Commerce, to 
develop telecommunications and information policies to promote the 
development of the Internet. The Privacy Working Group of the White 
House Task Force, led by NTIA, published a report entitled Privacy and 
the National Information Infrastructure. In the report, NTIA analyzed 
the state of privacy in the United States as it relates to existing and 
future communications services and recommended principles to govern the 
collection, processing, storage and use of personal data.\9\ In 1997, 
the White House Task Force noted NTIA's findings in publishing A 
Framework for Global Electronic Commerce, proposing five principles for 
international discussion to facilitate the growth of Internet 

    \8\ 47 U.S.C. 902 (noting NTIA has ``the authority to serve as 
the President's principal adviser on telecommunications policies 
pertaining to the Nation's economic and technological advancement 
and to the regulation of the telecommunications industry.''); see 
also Connecting America: The National Broadband Plan, http://download.broadband.gov/plan/national-broadband-plan.pdf, page 55.
    \9\ See National Telecommunications and Information 
Administration, ``Privacy and the National Information 
Infrastructure: Safeguarding Telecommunications-Related Personal 
Information,'' Oct. 1995, http://www.ntia.doc.gov/ntiahome/privwhitepaper.html.
    \10\ See President William J. Clinton and Vice President Albert 
Gore, Jr. ``A Framework for Global Electronic Commerce,'' 
Washington, DC. 1997, http://clinton4.nara.gov/WH/New/Commerce/read.html.

    Over subsequent years, the Department has worked in a number of 
international fora to develop privacy and security guidelines that 
foster international trade. ITA administers the U.S.-European Union 
(EU) Safe Harbor Framework, which allows U.S. companies to meet the 
requirements of the 1995 EU Directive on Data Protection for 
transferring data outside of the European Union.\11\ ITA also 
administers the U.S.-Swiss Safe Harbor Framework, which was implemented 
in 2008. The Department played a significant role in the development of 
the 1980 Organization for Economic Cooperation and Development (OECD) 
Privacy Guidelines, the 2005 Asia Pacific Economic Cooperation (APEC) 
Privacy Framework and the launch of the Trilateral Committee on 
Transborder Data Flows in 2008. ITA also is involved in bilateral 
Internet commerce and privacy policy initiatives with India, Japan, 
China, Korea and other key countries. In addition, ITA works closely 
with the Department's National Institute of Standards and Technology 
(NIST) and U.S. industry in developing international standards covering 
cybersecurity and data privacy.

    \11\ For more information on the U.S.-EU Safe Harbor Framework, 
see http://www.export.gov/safeharbor/.

    Today, there is a domestic and global reassessment of approaches to 
privacy given the fundamental changes in the information economy. The 
Federal Trade Commission (FTC) recently hosted a series of public 
roundtables to explore the privacy challenges posed by the wide array 
of 21st century technology and business practices that collect and use 
consumer data.
    The goal of the roundtables was to determine how best to protect 
consumer privacy while supporting beneficial uses of the information 
and technological innovation. The FTC accepted public comments on these 
issues through April 14, 2010, and FTC staff is now reviewing the 
comments received.\12\ The Department of Commerce has participated in 
these sessions and will continue to collaborate with the FTC going 
forward. The National Broadband Plan (Plan), which the Federal 
Communications Commission released on March 16, 2010, makes 
recommendations for government action to address online privacy 
issues.\13\ Specifically, the Plan recommended clarifying the 
relationship between users and their online profiles; developing 
trusted ``identity providers'' to help consumers manage their data; and 
creating principles to require that customers provide informed consent 
before service providers share certain types of information with third 
parties.\14\ The Plan also urged the creation of a number of Internet 
privacy-related innovations to enhance our nation's energy, education, 
health care, and government performance.\15\

    \12\ See Federal Trade Commission, Exploring Privacy: A 
Roundtable Series, http://www.ftc.gov/bcp/workshops/privacyroundtables/.
    \13\ See Connecting America: The National Broadband Plan, http://download.broadband.gov/plan/national-broadband-plan.pdf.
    \14\ Id. at 55-56 (Recommendations 4.14-4.16).
    \15\ Id. at 208. 234-35, 252, 253, 286 (Recommendations 10.4, 
11.11, 12.2, 12.5, 14.6, 14.7).

    Internationally, the OECD's Committee on Consumer Policy (CCP) 
recently launched a review of the 1999 Guidelines for Consumer 
Protection in the Context of E-Commerce.\16\ The OECD Working Party on 
Information Security and Privacy (WPISP) is conducting a 30th 
anniversary study of the 1980 OECD Guidelines Governing the Protection 
of Privacy and Transborder Flows of Personal Data.\17\ The APEC 
Electronic Commerce Steering Group is developing a system for cross-
border data flows among APEC members to implement its 2005 Privacy 
Framework.\18\ The United States, Canada and Mexico recently finalized 
a report highlighting the need to address impediments to transborder 
data flows.\19\ Finally, the European Commission is evaluating and 
considering changes to its 1995 Directive on Data Protection.\20\ Given 
the global reevaluation of data privacy policies, the Task Force is 
seeking to determine whether current privacy frameworks, or frameworks 
that are in development, create barriers to innovation on the Internet 
and, if so, how they might be addressed.

    \16\ See OECD, Conference on Empowering E-Consumers: 
Strengthening Consumer Protection in the Internet Economy, 
Washington, DC, Dec. 8-10, 2009, http://www.oecd.org/document/20/0,3343,en_21571361_43348316_43410324_1_1_1_1,00.html.
    \17\ See OECD, The 30th Anniversary of the OECD Privacy 
Guidelines, http://www.oecd.org/document/35/0,3343,en_2649_34255_44488739_1_1_1_1,00.html.
    \18\ See APEC, Data Privacy Pathfinder Projects Implementation 
Work Plan, http://www.apec.org/apec/apec_groups/committee_on_trade/electronic_commerce.html.
    \19\ See Office of Technology and Electronic Commerce, 
Trilateral Committee on Transborder Data Flow, http://spp.gov/pdf/Eng_Statement_of_Free_Flow.pdf.
    \20\ See European Commission, Freedom, Security, and Justice, 
Data Protection, http://ec.europa.eu/justice_home/fsj/privacy/index_en.htm.

Request for Comment

    This Notice of Inquiry seeks comment on the impact of the current 
privacy framework on Internet commerce and innovation, both from the 
commercial and consumer perspective, as well as ways in which it may be 
necessary to adjust today's privacy framework to preserve and even 
enhance innovation and privacy in our new web-centric information 
    The questions below are intended to assist in framing the issues 
and should not be construed as a limitation on comments that parties 
may submit. The Department invites comment on the full range of issues 
that may be presented by this inquiry. 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. The U.S. Privacy Framework Going Forward

    Prior to releasing this Notice, the Department conducted listening 
sessions with a wide range of

[[Page 21229]]

stakeholders in order to understand the questions most pertinent to 
stakeholders in the commercial, academic and civil society sectors and 
that have the greatest bearing on innovation and consumer expectations. 
During the course of those conversations, the Department heard that the 
customary notice and choice approach to consumer protection may be 
outdated, especially in the context of information-intensive, highly 
interactive, Web-based services. According to some, online interactions 
and web-based information linkages have become so complicated that it 
is increasingly difficult to provide consumers truly meaningful notice 
and choice. In lieu of, or in addition to notice and choice, some have 
advanced the notion that sophisticated data managers migrate to a 
``use-based'' model.\21\ These assertions raise several questions.

    \21\ Use-based rules regulate the types of uses (or purposes) 
for which personal information may be employed as opposed to 
regulating what personal data can be collected.

    Does the existing privacy framework provide sufficient guidance to 
the private sector to enable organizations to satisfy these laws and 
regulations? Are there modifications to U.S. privacy laws, regulations 
and self-regulatory systems that would better support innovation, 
fundamental privacy principles and evolving consumer expectations? If 
so, what areas require increased attention, either in the form of new 
laws, regulations or self-regulatory practices? What is the state of 
efforts to develop a self-regulatory privacy framework? Are there 
certain minimum or default requirements that should be incorporated 
either into self regulation or to law? What is the proper goal of 
privacy laws and regulations: Should the focus on commercial data 
privacy policy be on satisfying subjective consumer expectations or is 
it also necessary to enact objective privacy principles?
    Those addressing the utility of self-regulation should 
differentiate between practices defined and monitored unilaterally by 
an enterprise, and practices and monitoring systems developed by third-
parties. If a third-party develops best practices, what mechanisms 
would be available for users and civil society to provide feedback? How 
will industry sectors enforce best-practice regimes when it might not 
be in their economic interest to do so?
    Is the notice and choice approach to consumer data privacy still a 
useful model? Are there alternative approaches or frameworks that might 
be used instead of notice and choice? Those who urge a use-based model 
for commercial data privacy should detail how they would go about 
defining data protection obligations based on the type of data uses and 
the potential harm associated with each use.\22\ Describe how a use-
based privacy system would work? How should policy makers determine 
what constitute harmful uses of personal information in this model? Are 
there examples from existing privacy laws and regulations that suggest 
strengths and weakness of the ``use-based'' model? Is this ``use-
based'' model for commercial data privacy a workable approach for 
companies and consumers? What is the relationship between use-based 
privacy rules and proposed accountability systems?

    \22\ For more information on the use-based model, see e.g., The 
Business Forum for Consumer Privacy ``A Use and Obligations Approach 
to Protecting Privacy: A Discussion Document,'' Dec. 7, 2009, http://www.huntonfiles.com/files/webupload/CIPL_Use_and_Obligations_White_Paper.pdf.

2. U.S. State Privacy Laws

    Most U.S. states have data breach laws or private sector data 
privacy laws, and some have both.\23\ These and other state laws and 
regulations govern how companies can collect, use and disclose personal 
data about citizens of each state. The Task Force seeks input on how 
different state-level laws and regulations affect companies' compliance 
costs and product development processes. The agencies seek comment on 
whether a diversity of state privacy laws has a positive, negative or 
neutral impact on the privacy rights of Internet users.

    \23\ For a list of state data breach and data privacy laws see 
The National Conference of State Legislatures, Telecommunications 
and Information Technology, http://www.ncsl.org/Default.aspx?TabID=756&tabs=951,71,539#539.

    What, if any, hurdles do businesses face in complying with 
different state laws concerning privacy and data protection? Is there 
harmonization among state laws governing data protection? Please 
describe any significant differences that exist between the states. How 
does complying with multiple states' laws affect organizations' 
business activities and ability to operate online? What types of 
existing state laws have the greatest impact on companies' business 
models? What approaches do companies take to comply with privacy laws 
in multiple states? Have state laws that attempt to regulate location 
privacy had an impact on the development of business models or the way 
in which businesses introduce new products in various markets? \24\ 
What future directions in state law are anticipated? Does the variety 
of technology-specific state laws help individual Internet users 
exercise their rights, or does it create confusion for consumers? Have 
technology-specific state privacy laws affected online innovation and 
business development and, if so, how?

    \24\ Locational privacy (also known as ``location privacy'') is 
an individual's ability to move in public space with the expectation 
that his or her location will not be systematically and secretly 
recorded for later use.

3. International Privacy Laws and Regulations

    A variety of foreign laws govern how companies collect, use and 
share personal data. There are national laws, sub-national laws, a 
region-wide Directive in the European Union in addition to member-state 
laws and, in many countries, laws under development. The Task Force 
seeks input on how international data privacy laws and regulations 
affect global Internet commerce, companies' compliance costs and 
product development process, and Internet users.
    What, if any, hurdles do businesses face in complying with 
different foreign laws concerning privacy and data protection? What 
types of foreign privacy laws have the greatest impact on companies' 
business models? What approaches have businesses used to comply with 
laws in multiple foreign jurisdictions? Do foreign laws that contain 
content-based restrictions impede global trade or foreign investment? 
For example, are there laws that restrict the types of information that 
may be transferred, displayed, published or posted online which have 
deterred businesses from entering certain markets or from engaging in 
certain cross-border activity? Are laws that permit governments to have 
access to personal information an impediment to innovation or global 
trade and investment? If so, are the laws themselves actually an 
impediment, or is it the application and enforcement of such laws that 
are of concern? What challenges do businesses face when trying to 
transfer data across borders? What lessons have been learned from the 
U.S.-EU Safe Harbor Framework that could be applied in the global 
context? What mechanisms do organizations use to enable cross border 
data transfers? To what extent if any do privacy laws outside the 
United States create third party liability for Internet intermediaries 
such as search engines, content hosting

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services, Internet service providers or others? \25\

    \25\ See, e.g., 47 U.S.C. 230(c) (2006) (``No provider or user 
of an interactive computer service shall be treated as the publisher 
or speaker of any information provided by another information 
content provider.'').

    How does the multiplicity of international privacy laws impact 
Internet users? What models for protection of individual privacy rights 
across borders have proven effective in the global environment of the 
Internet? Can countries with different privacy rules cooperate to 
protect the privacy interests of their citizens?
    How might privacy regimes in the United States and other 
jurisdictions across the globe be harmonized?

4. Jurisdictional Conflicts and Competing Legal Obligations

    Today, cloud computing models allow organizations to collect, 
store, access and process data in separate locations around the world. 
This can create challenges for both companies and regulators in 
determining where data is located and who has jurisdiction over that 
data. In addition, different regulators may attempt to assert 
jurisdiction over data or a company's business practices, which may 
create conflicting or competing legal obligations. For example, one 
jurisdiction may require a company to retain its data, while another 
may ask that data be expunged after its use. The Task Force seeks 
information on any jurisdictional conflicts companies and regulators 
face as a result of data privacy laws, how they are reconciled and 
what, if any, effect they have on trade and foreign investment.
    Do organizations face jurisdictional disputes as a result of 
domestic or foreign privacy laws? Please describe the types of 
jurisdictional disputes that arise as a result of privacy laws. What, 
if any, conflicting legal obligations do companies face as a result of 
data privacy laws? How do companies address jurisdictional conflicts 
and any resulting conflicting legal and regulatory obligations? How do 
such conflicts affect the cost of doing business? Do jurisdictional 
issues affect global sales of U.S. companies when the U.S. company 
stores data from non-U.S. customers inside the United States? Does 
cloud computing, or other methods of globally distributing and managing 
data, raise specific issues with respect to jurisdiction of which 
Commerce and regulators should be aware? Have jurisdictional conflicts 
had any impact on U.S. consumers?

5. Sectoral Privacy Laws and Federal Guidelines

    The U.S. privacy framework is composed of sectoral laws combined 
with constitutional, statutory, regulatory and common law protections, 
in addition to industry self-regulation. Sectoral laws govern the 
handling of personal data considered most sensitive. For instance, the 
Communications Act includes privacy protections that telecommunication 
providers and cable operators must follow when handling the personal 
information of subscribers.\26\ The Health Insurance Portability and 
Accountability Act (HIPAA) stipulates how ``covered'' health care 
entities can use and disclose data.\27\ The Fair Credit Reporting Act 
(FCRA) governs how consumer reporting agencies share personal 
information.\28\ The Gramm-Leach-Bliley Act (GLBA) covers certain data 
held by financial institutions.\29\ The Children's Online Privacy 
Protection Act (COPPA) protects information collected online about 
children under 13.\30\ In addition to these sectoral laws, the Federal 
Trade Commission Act (FTC Act) provides the FTC authority to combat 
``unfair or deceptive'' business practices.\31\ The FTC also provides 
guidance for businesses regarding privacy and security practices.\32\ 
These laws and guidelines affect U.S. economic activity by controlling 
how organizations can use data to develop new products and services or 
improve existing ones. The laws and guidelines differentiate between 
categories of data (e.g., health care, financial and other), and they 
differentiate between data subjects (e.g., children and others). The 
Task Force seeks input on how the U.S. privacy framework affects 
business innovation, accountability and compliance related to the use 
of personal information.

    \26\ See 47 U.S.C. 551 (2006) (Protection of Subscriber 
    \27\ See 42 U.S.C. 1320 (2006) (``A covered entity may not use 
or disclose protected health information'' except as permitted by 
statute.). For information on HIPPA, see http://www.hhs.gov/ocr/privacy/.
    \28\ See 15 U.S.C. 1681r (``Any officer or employee of a 
consumer reporting agency who knowingly and willfully provides 
information concerning an individual from the agency's files to a 
person not authorized to receive that information shall be fined 
under title 18, imprisoned for not more than 2 years, or both.''). 
For information on the FCRA, see http://www.ftc.gov/os/statutes/fcrajump.shtm.
    \29\ See 15 U.S.C. 6801-09, 6821-27 (2006). See e.g., 15 U.S.C. 
6801a (2006) (``It is the policy of the Congress that each financial 
institution has an affirmative and continuing obligation to respect 
the privacy of its customers and to protect the security and 
confidentiality of those customers' nonpublic personal 
information.''). For information on the GLBA, see http://www.ftc.gov/privacy/privacyinitiatives/glbact.html.
    \30\ See 15 U.S.C. 6501-06 (2006). See, e.g.,15 U.S.C. 6502a 
(2006) (``It is unlawful for an operator of a website or online 
service directed to children, or any operator that has actual 
knowledge that it is collecting personal information from a child, 
to collect personal information from a child in a manner that 
violates the [statute].''). For information on the COPPA, see http://www.ftc.gov/privacy/privacyinitiatives/childrens.html.
    \31\ See 15 U.S.C. 41-58 (2006). See, e.g., 15 U.S.C. 45(a) 
(2006) (``The Commission is hereby empowered and directed to prevent 
persons, partnerships, or corporations * * * from using unfair 
methods of competition in or affecting commerce and unfair or 
deceptive acts or practices in or affecting commerce.''). For 
information on the FTC Act, see http://www.ftc.gov/ogc/stat1.shtm.
    \32\ See Federal Trade Commission, Privacy Initiatives, http://www.ftc.gov/privacy/index.html.

    How does the current sectoral approach to privacy regulation affect 
consumer experiences, business practices or the development of new 
business models? How does the sectoral approach affect individual 
privacy expectations? What practices and principles do these sectoral 
approaches have in common, how do they differ? Are there alternatives 
or supplements to the sectoral approach that should be considered? What 
can be done to make the current framework more conducive to business 
development while ensuring effective privacy protections?

6. New Privacy-Enhancing Technologies and Information Management 

    Researchers at universities, think tanks, international 
organizations and company laboratories are developing privacy-enhancing 
technologies and business methods to implement company privacy policies 
and user preferences and to increase company accountability. 
Researchers, for example, are considering consumer-targeted systems 
that employ text analysis and behavioral economics to create enhanced 
notification to consumers about privacy policies or to manage the 
information they are sharing. These technologies and ever-evolving, 
internal business processes have become an integral component of 
industry self-regulation. At the same time, researchers recognize the 
limitations of privacy-enhancing technologies related to consumer and 
industry adoption, new research demonstrating the possibility of data 
re-identification,\33\ and the continued security risks posed by 
hackers and other forms of electronic intrusion. The

[[Page 21231]]

Task Force seeks input on the development, use and acceptance of 
privacy-related technologies and business processes and their potential 
to enhance consumer trust in Internet commerce.

    \33\ Re-identification is the process by which personal data is 
matched with its true owner. In order to protect privacy of 
consumers, personal identifiers, such as social security numbers, 
are often removed from databases containing sensitive information. 
This de-identified data safeguards consumer privacy. However, 
computer scientists recently revealed that this ``anonymize'' data 
can be re-identified, such that the sensitive information may be 
linked back to an individual.

    What is the state of development of technologies and business 
methods aimed at: (1) Improving companies' ability to monitor and audit 
their compliance with their privacy policy and expressed user 
preferences; (2) using text analysis or similar technologies to provide 
privacy notices; and (3) enabling anonymized browsing, communication 
and authentication? Please describe any other ongoing efforts to 
develop privacy-enhancing technologies or processes of which the 
Commerce Department should be aware. How has recent research 
demonstrating the possibility of data re-identification affected 
anonymization research efforts? Have consumers or businesses readily 
accepted or used these technologies when they were made available? What 
steps can be taken to assure that privacy-enhancing business processes 
are robust, complied with and regularly updated? Do technology 
designers and implementers have the right balance of incentives to 
include privacy considerations at the design phase of their work? Have 
currently-available privacy-related technologies and processes 
increased user trust or companies' ability to manage personal 
    Finally, the FCC has raised a number of privacy-related 
recommendations for government action.\34\ Specifically, the Plan 
recommends clarifying the relationship between users and their online 
profiles; developing trusted ``identity providers'' to assist consumers 
manage their data; and creating principles to require customers provide 
informed consent before service providers share certain types of 
information with third parties. What kinds of contributions to privacy 
and innovation could such identity providers make? What marketplace 
experience is there with such trusted third parties? Are there any 
services of this sort imagined by the FCC in operation today? Is any 
government action needed to encourage the marketplace in this 

    \34\ See supra note 14.

7. Small and Medium-Sized Entities and Startup Companies

    Small and medium-sized entities (SMEs) and startup companies face 
the same data protection laws and guidelines as their larger 
counterparts, but with fewer resources. The Task Force seeks input on 
how the issues outlined above might uniquely affect smaller companies 
and how these effects are managed.
    How do existing privacy laws impact SMEs and startup companies? 
Please describe any unique compliance burdens placed on smaller 
companies as a result of existing privacy laws. Are there commercial or 
collective tools available to address such issues? How might privacy 
protections be better achieved in the SME environment? Have smaller 
companies been unable to engage in certain types of business activities 
as a result of existing privacy laws? Do foreign privacy laws pose a 
barrier to SMEs' international business plans? If such unique burdens 
do exist, what mechanisms do SMEs see as helpful for surmounting those 

8. The Role for Government/Commerce Department

    The U.S. privacy framework described above is multi-faceted. The 
combination of sector-specific laws for sensitive data, self-
regulation, complemented by FTC enforcement authority, transparent 
privacy practices, and voluntary guidelines, have generated industry 
best practices, privacy seal programs and private sector innovation to 
enhance privacy disclosures and consumer choice regarding data usage. 
In many, though not all cases, this has been a formula for success to 
build on. Yet, surveys continue to indicate that consumers are 
concerned or confused about what happens to their personal information 
online. The Task Force seeks input on how to help address barriers to 
increased innovation and consumer trust in the information economy.
    How can the Commerce Department help address issues raised by this 
Notice of Inquiry?

    Dated: April 20, 2010.
Gary M. 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. 2010-9450 Filed 4-22-10; 8:45 am]