Congressman Rush Pushes Privacy Agenda With Introduction of Bill

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Yesterday Illinois Congressman Bobby Rush, Chairman of the Committee on Energy and Commerce Subcommittee on Commerce, Trade, and Consumer Protection introduced H.R. 5777 the “Building Effective Strategies To Promote Responsibility Accountability Choice Transparency Innovation Consumer Expectations and Safeguards Act”, or BEST PRACTICES Act of 2010.  The bill adds to the contentious privacy debate that came with the much-anticipated Boucher-Stearns privacy legislation circulated in draft form earlier this year, and which is still in draft form.  

While the just-introduced bill shares similarities with the draft Boucher legislation, the 55-page bill proposes to levy fines of up to $5 million on businesses and individuals unless they abide by a  regulations to be administrated by the Federal Trade Commission. There is an exemption for small businesses, but entities (and even individuals) that hold 15,000 or more names, e-mail addresses, or other personal information in their records will be subject to the proposed law.  

Some additional points that differentiate it from the Boucher-Stearns draft bill also include:

– A broader safe-harbor rule, which is essentially tossed to the FTC to detail the rule-making;
– A broader definition of sensitive data;
– A broader definition of third parties (i.e. a company’s different brands could be third party if a consumer wouldn’t associate them together);
– IP addresses are not covered, unless linked to a profile used for analysis or tracking;
– A wider exemption for operational needs;
– A private right of action is included.

Congressman Rush has scheduled an initial hearing on the bill  for this Thursday at  2 PM EDT, which will be an important continuation of the ongoing discussion of what legal protections may be needed.  Our prediction is that the bill is not likely to near passage this year, given the limited legislative time available, but it serves to further the discussion about some very important issues in this space.  The Future of Privacy Forum looks forward to further analysis and discussion of the bill in the days ahead.