[Federal Register Volume 63, Number 108 (Friday, June 5, 1998)]
[Notices]
[Pages 30729-30732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15063]


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DEPARTMENT OF COMMERCE

[Docket No. 980422102-8102-01]
RIN 0660-AA13


Elements of Effective Self Regulation for the Protection of 
Privacy and Questions Related to Online Privacy

AGENCY: National Telecommunications and Information Administration, 
Department of Commerce.

ACTION: Notice and request for public comment.

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SUMMARY: The Department of Commerce, along with the Office of 
Management and Budget has been asked to report to the President on 
industry efforts to establish self-regulatory regimes to ensure privacy 
online and to develop technological solutions to protect privacy. The 
President also directed the Commerce Department and the Office of 
Management and Budget to ensure that means are developed to protect 
children's privacy online. The Department of Commerce requests comments 
on various aspects of Internet Privacy including the effectiveness of 
self regulation for privacy. Specifically, the Department of Commerce 
seeks comment on the staff discussion paper ``Elements of Effective 
Self Regulation for Protection of Privacy.'' It also asks for responses 
to specific questions concerning online privacy protection. In 
addition, the Department seeks input on the specific instances in which 
government action may be necessary to protect privacy on the Internet.

DATES: Comments must be received by July 6, 1998.

ADDRESSES: Mail written comments to Jane Coffin, Office of 
International Affairs, National Telecommunications and Information 
Administration (NTIA), Room 4898, 14th St. and Constitution Ave., NW, 
Washington, DC. 20230, or email comments to <a href="/cdn-cgi/l/email-protection#48383a213e292b3108263c2129662c272b662f273e"><span class="__cf_email__" data-cfemail="f686849f8097958fb698829f97d8929995d8919980">[email protected]</span></a>. 
Messages to that address will receive a reply in acknowledgment. 
Comments submitted in electronic form should be in ASCII, WordPerfect 
(please specify version), or Microsoft Word (please specify version) 
format. Comments will be posted on the NTIA website at <a href="http://
www.ntia.doc.gov">http://
www.ntia.doc.gov</a>. Detailed information about electronic filing is 
available on the NTIA website, http://www.ntia.doc.gov. Paper 
submissions should include three paper copies and a version on diskette 
in a format specified above.

FOR FURTHER INFORMATION CONTACT: Jane Coffin, NTIA, (202) 482-1890.

SUPPLEMENTARY INFORMATION:

Background

    The rapid growth in the use of the Internet, for both personal and 
commercial purposes, has led to increased public concern about personal 
privacy. The promise of information technologies--their ability to 
facilitate the collection, re-use and instantaneous transmission of 
information--can, if not managed carefully, diminish personal privacy. 
A Framework for Global Electronic Commerce, issued by the 
Administration on July 1, 1997, recognizes that it is essential to 
assure personal privacy in the networked environment if people are to 
feel comfortable doing business online.
    There are a number of statutory or regulatory regimes that continue 
to apply in an online environment (e.g., the Fair Credit Reporting 
Act). For Internet industries and commercial activities not covered by 
statute or regulation, however, the Administration has called on the 
private sector to develop self-regulatory mechanisms to protect privacy 
online. The President directed the Department of Commerce and the 
Office of Management and

[[Page 30730]]

Budget to work with the private sector to develop and implement 
effective, consumer-friendly, self-regulatory privacy regimes. These 
regimes should enable consumers to choose how their personal 
information will be used, ensure adoption of and adherence to fair 
information practices, and provide for prompt, efficient dispute 
resolution.
    The Administration supports private sector efforts to implement 
effective self-regulatory privacy regimes for the Internet. These 
include mechanisms for facilitating consumer awareness of privacy 
principles and the exercise of choice about whether and under what 
circumstances to disclose personal information online, evaluating 
private sector adoption of and adherence to fair information practices, 
and dispute resolution. The Administration also anticipates that 
technology tools will empower consumers to exercise choices about their 
privacy. If, upon evaluation, this approach proves not to be effective, 
other government action may be needed.
    The Department of Commerce has talked with industry, members of the 
academic community, public interest groups and the international 
community to consider what characteristics of a self regulatory program 
would be necessary to protect privacy effectively. The Department seeks 
the views of the public regarding the draft discussion paper, 
``Elements of Effective Self Regulation for Protection of Privacy'' 
(``the draft discussion paper'' published below), which proposes the 
elements that should be present in a self regulation regime that 
effectively protects privacy online, while encouraging industry to 
craft methods of implementing those elements that best serve its needs 
and the needs of its consumers. The Department also seeks comment on 
issues surrounding self regulation and online privacy. Specifically, 
the Department seeks information on the following:
    1. The discussion paper sets out nine specific characteristics of 
effective self regulation for privacy: awareness, choice, data 
security, data integrity, consumer access, accountability, consumer 
recourse, verification and consequences. Which of the individual 
elements set out in the draft discussion paper do you believe are 
necessary for self regulation to protect privacy? To what extent is 
each element necessary for effective self regulation? What are the 
impediments and costs involved in fulfilling each element of a self 
regulatory scheme? What are the competing interests in providing each 
element? How would the inclusion of each element affect larger, medium 
sized, and smaller companies? What advantages or disadvantages does 
each element hold for consumers? What are the challenges faced by 
companies in providing each element? How do these challenges depend 
upon the size and nature of the business?
    2. The draft discussion paper notes that individual industry 
sectors will need to develop their own methods of providing the 
necessary requirements of self regulation. How might companies and/or 
industry sectors implement each of the elements for self regulation?
    3. Please submit examples of existing privacy policies. In what 
ways do they effectively address concerns about privacy in the 
information to which they apply? In what ways do they fail?
    4. Are elements or enforcement mechanisms other than those 
identified in the draft discussion paper necessary for effective self 
regulation for privacy protection? If so, what are they? How might they 
be implemented? In addition to the fair information practices and 
enforcement mechanisms stated in the discussion draft, are there other 
privacy protections or rights essential to privacy protection?
    5. Should consumer limitations on how a company uses data be 
imposed on any other company to which the consumer's information is 
transferred or sold? How should such limitations be imposed and 
enforced?
    6. Please comment specifically on the elements set out in the draft 
discussion paper that deal with enforcement (verification, recourse, 
and consequences) and suggest ways in which companies and industry 
sectors might implement these. What existing systems and/or 
organizations might serve as models for consumer recourse mechanisms, 
and explain why they might or might not be effective? Would a 
combination of elements from existing systems and/or organizations be 
effective? How might verification be accomplished? What would 
constitute adequate verification, i.e., in what instances would third-
party verification or auditing be necessary, and in what cases would 
something such as self certification or assertions that one is ``audit-
ready'' suffice? What criteria should be considered to determine the 
kind of verification that would be appropriate for a company or sector? 
What constitutes ``reasonable access?'' What are the costs/impediments 
involved in providing access? What criteria should be considered to 
determine ``reasonable access'' to information for a company or sector?
    7. In the section on consequences, the draft discussion paper 
states that ``sanctions should be stiff enough to be meaningful and 
swift enough to assure consumers that their concerns are addressed in a 
timely fashion.'' Identify appropriate consequences for companies that 
do not comply with fair information practices that meet this goal, and 
explain why they would be effective.
    8. What is required to make privacy self regulation effective? 
Self-regulatory systems usually entail specific requirements, e.g., 
professional/business registries, consumer help resources, seals of 
accreditation from professional societies, auditing requirements. What 
other elements/enforcement mechanisms might be useful to make privacy 
self regulation effective? How have these enhanced or failed to enhance 
a self-regulation regime?
    9. Self regulation has been used by the business community in other 
contexts. Please provide examples and comment on instances in which 
self regulation is used in an industry, profession or business activity 
that you believe would be relevant to enhance privacy protection. In 
what ways does self regulation work in these instances? In what ways 
does it fail? How could existing self-regulatory regimes be adapted or 
improved to better protect privacy?
    10. Please comment on the extent to which you believe self 
regulation can successfully protect privacy online. Are there certain 
areas of online activity in which self regulation may be more 
appropriate than in others? Why?
    11. Please comment on the costs business would incur in 
implementing a self-regulatory regime to protect privacy. How do these 
costs compare to the costs incurred to comply with legislation or 
regulation?
    12. What issues does the online environment raise for self 
regulation that are not raised in traditional business environments? 
What characteristics of a self-regulatory system in a traditional 
business environment may be difficult to duplicate online? Does the 
online environment present special requirements for self regulation 
that are not present in a traditional business environment? Does the 
traditional business environment have special requirements that are not 
presented in the online environment? What are these requirements?
    13. What experiences have you encountered online in which privacy 
has been at issue? In what instances has privacy appeared to be at 
risk? In what instances is it well protected? In what ways have 
businesses or organizations been responsive to privacy concerns? How 
difficult have you found it to protect your privacy online? What

[[Page 30731]]

circumstances give rise to good privacy protection in a traditional 
business setting or online?
    14. The Administration's A Framework for Global Electronic Commerce 
cites the need to strike a balance between freedom of information 
values and individual privacy concerns. Please comment on the 
appropriate point at which that balance might be struck. What is the 
responsibility of businesses, organizations or webpages to protect 
individual privacy? To what extent do these parties have a right to 
collect and use information to further their commercial interests? To 
what extent is it the individual's responsibility to protect his or her 
privacy?

Elements of Effective Self-Regulation for Protection of Privacy

    As set forth in A Framework for Global Electronic Commerce, the 
Clinton Administration supports private sector efforts to implement 
meaningful, consumer-friendly, self-regulatory regimes to protect 
privacy. To be meaningful, self-regulation must do more than articulate 
broad policies or guidelines. Effective self-regulation involves 
substantive rules, as well as the means to ensure that consumers know 
the rules, that companies comply with them, and that consumers have 
appropriate recourse when injuries result from noncompliance. This 
paper discusses the elements of effective self-regulatory regimes--one 
that incorporates principles of fair information practices with 
enforcement mechanisms that assure compliance with those practices.

A. Principles of Fair Information Practices

    Fair information practices form the basis for the Privacy Act of 
1974, the legislation that protects personal information collected and 
maintained by the United States government. In 1980, these principles 
were adopted by the international community in the Organization for 
Economic Cooperation and Development's Guidelines for the Protection of 
Personal Data and Transborder Data Flows.
    Principles of fair information practices include consumer 
awareness, choice, appropriate levels of security, data integrity, and 
consumer access to their personally identifiable data. While the 
discussion that follows suggests ways in which these principles can be 
implemented, the private sector is encouraged to develop its own ways 
of accomplishing this goal.
    1. Awareness. At a minimum, consumers need to know the identity of 
the collector of their personal information, the intended uses of the 
information, and the means by which they may limit its disclosure. 
Companies are responsible for raising consumer awareness and can do so 
through the following avenues:
    <bullet> Privacy policies. Privacy policies articulate the manner 
in which a company collects, uses, and protects data, and the choices 
they offer consumers to exercise rights in their personal information. 
On the basis of this policy, consumers can determine whether and to 
what extent they wish to make information available to companies.
    <bullet> Notification. A company's privacy policy should be made 
known to consumers. Notification should be written in language that is 
clear and easily understood, should be displayed prominently, and 
should be made available before consumers are asked to provide personal 
information to the company.
    <bullet> Consumer education. Companies should teach individuals to 
ask for relevant knowledge about why personal information is being 
collected, what the information will be used for, how it will be 
protected, the consequences of providing or withholding information, 
and any recourse they may have. Consumer education enables consumers to 
make informed decisions about how they allow their personal data to be 
used as they participate in the information economy. Consumer education 
may be carried out by individual companies, trade associations, or 
industry public service campaigns.
    2. Choice. Consumers should be given the opportunity to exercise 
choice with respect to whether and how their personal information is 
used, either by businesses with whom they have direct contact or by 
third parties. Consumers must be provided with simple, readily visible, 
available, and affordable mechanisms--whether through technological 
means or otherwise--to exercise this option. For certain kinds of 
information, e.g., medical information or information related to 
children, affirmative choice by consumers may be appropriate. In these 
cases companies should not use personal information unless its use is 
explicitly consented to by the individual or, in the case of children, 
his or her parent or guardian.
    3. Data Security. Companies creating, maintaining, using or 
disseminating records of identifiable personal information must take 
reasonable measures to assure its reliability for its intended use and 
must take reasonable precautions to protect it from loss, misuse, 
alteration or destruction. Companies should also strive to assure that 
the level of protection extended by third parties to whom they transfer 
personal information is at a level comparable to its own.
    4. Data Integrity. Companies should keep only personal data 
relevant for the purposes for which it has been gathered, consistent 
with the principles of awareness and choice. To the extent necessary 
for those purposes, the data should be accurate, complete, and current.
    5. Consumer Access. Consumers should have the opportunity for 
reasonable, appropriate access to information about them that a company 
holds, and be able to correct or amend that information when necessary. 
The extent of access may vary from industry to industry. Providing 
access to consumer information can be costly to companies, and thus 
decisions about the level of appropriate access should take into 
account the nature of the information collected, the number of 
locations in which it is stored, the nature of the enterprise, and the 
ways in which the information is to be used.
    6. Accountability. Companies should be held accountable for 
complying with their privacy policies.

B. Enforcement

    To be effective, a self-regulatory privacy regime should include 
mechanisms to assure compliance with the rules and appropriate recourse 
to an injured party when rules are not followed. Such mechanisms are 
essential tools to enable consumers to exercise their privacy rights, 
and should, therefore, be readily available and affordable to 
consumers. They may take a variety of forms and businesses may need to 
use more than one depending upon the nature of the enterprise and the 
kind and sensitivity of information the company collects and uses. The 
discussion of enforcement tools below is in no way intended to be 
limiting. The private sector may design the means to provide 
enforcement that best suit its needs and the needs of consumers.
    1. Consumer recourse. Companies that collect and use personally 
identifiable information should offer consumers mechanisms by which 
their complaints and disputes can be resolved. Such mechanisms should 
be readily available and affordable.
    2. Verification. Verification provides attestation that the 
assertions businesses make about their privacy practices are true and 
that privacy practices have been implemented as represented. The nature 
and the extent of verification depends upon the kind of information

[[Page 30732]]

with which a company deals--companies using highly sensitive 
information may be held to a higher standard of verification. Because 
verification may be costly for business, work needs to be done to 
arrive at appropriate, cost-effective ways to provide companies with 
the means to provide verification.
    3. Consequences. For self-regulation to be effective, failure to 
comply with fair information practices should have consequences. 
Examples of such consequences include cancellation of the right to use 
a certifying seal or logo, posting the name of the non-complier on a 
``bad-actor'' list, or disqualification from membership in an industry 
trade association. Non-compliers could be required to pay the costs of 
determining their non-compliance. Ultimately, sanctions should be stiff 
enough to be meaningful and swift enough to assure consumers that their 
concerns are addressed in a timely fashion. When companies make 
assertions that they are abiding by certain privacy practices and then 
fail to do so, they may be liable for deceptive practices and subject 
to action by the Federal Trade Commission or appropriate bank or 
financial regulatory authority.
Shirl Kinney,
Deputy Assistant Secretary and Administrator.
[FR Doc. 98-15063 Filed 6-4-98; 8:45 am]
BILLING CODE 3510-60-P


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