Privacy & Information Security Law Blog

Earlier today, a Department of Commerce official briefed Hunton & Williams and Centre for Information Policy Leadership representatives on the Department’s forthcoming “Green Paper” on privacy.  On November 12, 2010, Telecommunications Reports Daily published an article based on information obtained from an unofficial, pre-release draft version of the Green Paper.  It remains to be seen which portions of the leaked draft ultimately will survive the interagency approval process currently underway.  The Department of Commerce representative emphasized that the content of the draft Green Paper currently undergoing review is consistent with Assistant Secretary of Commerce Larry Strickling’s October 27, 2010, speech in Jerusalem.  In his speech, Secretary Strickling explained that the Department is calling it a “Green” Paper, “not because of its environmental impact, but because it contains both recommendations and a further set of questions on topics about which [the Department] seek[s] further input.”

The Commerce Department representative confirmed that quotes contained in the TR Daily article are indeed found in the current version of the Green Paper, but characterized as inaccurate certain implications found in other media accounts regarding the report.  For example, although a New York Times article suggested a possible conflict between a paper being prepared by the Federal Trade Commission and the Department of Commerce’s Green Paper, the Commerce Department representative indicated that this is not the case – the two entities have shared drafts of their respective reports and Commerce considers them to be “perfectly aligned.”  Commerce believes that the FTC should continue to function as the lead enforcement agency for privacy issues, but also sees a role for a new privacy policy agency that would function in cooperation with the FTC.  This new privacy body might be located in the White House or the Commerce Department, and would liaise with businesses seeking to develop new solutions to emerging privacy issues.  The current version of the Green Paper also highlights the Department of Commerce’s support for new federal legislation based on Fair Information Practice Principles, in conjunction with industry self-regulation.

The Department of Commerce representative indicated that input provided by the Centre for Information Policy Leadership has been influential in the development of the Green Paper.  According to the Centre’s Executive Director, Marty Abrams, these contributions are reflective of ongoing work the Centre has been undertaking to link technological innovation and accountability.  In June of this year, we reported on the Centre’s involvement with the Commerce Department’s initial inquiry.

It is not clear at this time when the Green Paper will be issued, but it is expected before the end of this year.  The document will contain numerous questions and a solicitation for comments from interested stakeholders. We will provide additional coverage as this story develops.