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Online Privacy Issues Heating Up

There are several important new developments in the online privacy arena.  New online privacy legislation, including a bill to create a new “Do Not Track” regulatory regime for online behavioral advertising, has been introduced in the U.S. Congress and the New York State Assembly.  Other legislation is expected to be introduced soon in both the U.S. Senate and House.  On Monday, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) announced the formation of a new Judiciary Subcommittee on Privacy, Technology and Law.  Senator Al Franken (D-MN) will be the Chairman of that new subcommittee, which will have jurisdiction over “laws and policies governing the collection, protection, use and dissemination of commercial information by the private sector, including online behavioral advertising, privacy within social networking websites and other online privacy issues.”   Senator Richard Blumenthal (D-CT) is also on the new subcommittee.  He was very active on privacy issues while serving as Connecticut Attorney General.

All of these developments underscore how critical it is for the marketing community to demonstrate to policymakers that we can respect and protect the privacy interests of consumers in the online environment without new laws.

ANA has been working for several years with member companies and other industry groups to develop a comprehensive new self-regulatory program for online behavioral advertising.  That program was formally launched last October and we strongly urge all marketers who engage in online behavioral advertising to join that effort as quickly as possible.  Detailed information about the program and how your company can join is available at the program's website.  We also provided our member companies an “OBA Toolkit,” which is available here.

Privacy Legislation

Last week, Representative Jackie Speier (D-12/CA) introduced H.R. 654, the “Do Not Track Me Online Act of 2011.”  The bill directs the Federal Trade Commission (FTC) to establish a “Do Not Track” mechanism that would allow consumers to opt out of information collection for the purposes of online behavioral advertising.  She also introduced H.R.653, the “Financial Information Privacy Act of 2011,” which would provide new rules for the collection and use of financial information.

Congressman Bobby Rush (D-1/IL) introduced a comprehensive privacy bill that would establish new privacy rules for both the online and offline world.  His bill, H.R. 611, the “BEST PRACTICES ACT” – “Building Effective Strategies to Promote Responsibility Accountability Choice Transparency Innovation Consumer Expectations and Safeguards Act,” is similar to legislation he introduced in the last Congress.  The Rush bill does not include a “Do Not Track” provision.

We expect comprehensive privacy legislation to be introduced soon by Senator John Kerry (D-MA) and new children’s privacy legislation to be introduced by Congressman Ed Markey (D-7/MA).

In the New York State Assembly, Assemblyman Brian Kavanagh introduced AB4809, the “Online Consumer Protection Act.”  That bill would establish new online privacy rules and require marketers to allow consumers to opt out of any information collection for purposes of online behavioral advertising.  The bill is similar to a proposal that was introduced several years ago by former Assemblyman Richard Brodsky.  State specific rules impose a serious burden on marketers who operate in a national and global marketplace.   ANA worked closely with member companies and other industry groups to defeat that proposal in New York State and we will continue those efforts this year.

It is clear that there will be substantial activity in Congress and possibly the states on these issues.  Also, the FTC and the Department of Commerce will soon provide their reports to Congress on privacy issues.  We need your assistance to oppose new legislation that would impose onerous and unnecessary restrictions on the collection and use of consumer information.

These issues will be discussed in detail at ANA’s Advertising Law and Public Policy Conference, which will be held March 15-16 in Washington, DC.

If you have any questions or comments on these issues, please contact Dan Jaffe (djaffe@ana.net)  or Keith Scarborough (kscarborough@ana.net) in ANA’s Washington, DC office at (202) 296-1883.

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