1. The Role of the Federal Government in Privacy Policy Professor Peter P. Swire The Ohio State University Center for American Progress The Privacy Symposium, Summer 2007 August 23, 2007

2. Overview My background My background Privacy under Pres. (Bill) Clinton Privacy under Pres. (Bill) Clinton Role of the Chief Counselor for Privacy Role of the Chief Counselor for Privacy Privacy under Pres. George W. Bush Privacy under Pres. George W. Bush What institutions and policies for the next administration? What institutions and policies for the next administration?

3. My Background Law prof in 1990s Law prof in 1990s Book on EU Directive & US Book on EU Directive & US Chief Counselor for Privacy, US Office of Management & Budget, 1999 to early 2001 Chief Counselor for Privacy, US Office of Management & Budget, 1999 to early 2001 Law prof again since early 2001 Law prof again since early 2001 Senior Fellow, Center for American Progress Senior Fellow, Center for American Progress Consultant to Morrison & Foerster, LLP Consultant to Morrison & Foerster, LLP Lots of privacy & security at www.peterswire.net Lots of privacy & security at www.peterswire.net

4. Privacy in Clinton Years 1993: Information Superhighway 1993: Information Superhighway FTC and unfair & deceptive practices FTC and unfair & deceptive practices Cyberspace & privacy as new missions for the FTC Cyberspace & privacy as new missions for the FTC Childrens Online Privacy Protection Act of 1998 Childrens Online Privacy Protection Act of 1998 Gore speech 1998 – need a White House official for privacy Gore speech 1998 – need a White House official for privacy I started early 1999 I started early 1999

5. Privacy in Federal Government 6/99 OMB memorandum to post clear privacy policies on agency sites 6/99 OMB memorandum to post clear privacy policies on agency sites 6/00 OMB memorandum presumption against cookies on federal sites & reports to OMB on privacy in the budget process 6/00 OMB memorandum presumption against cookies on federal sites & reports to OMB on privacy in the budget process 12/00 OMB memorandum on agency data sharing, including push for privacy impact assessments 12/00 OMB memorandum on agency data sharing, including push for privacy impact assessments Federal CIO Council privacy committee Federal CIO Council privacy committee

6. Themes in Federal Government Government should lead by example Government should lead by example Hard to push for strong web privacy unless government agencies have good policies Hard to push for strong web privacy unless government agencies have good policies Government must respond to privacy crises Government must respond to privacy crises Cookies memo after drug czar site found with cookies Cookies memo after drug czar site found with cookies FIDNet and how not to announce surveillance of all who come to federal web sites FIDNet and how not to announce surveillance of all who come to federal web sites

7. Medical Privacy HIPAA statute in 1996 HIPAA statute in 1996 Congressional deadline to write law by 8/99 Congressional deadline to write law by 8/99 Proposed rule 10/99 Proposed rule 10/99 52,000 comments by 2/00 52,000 comments by 2/00 Final rule 12/00 Final rule 12/00 Almost repealed 3/01 Almost repealed 3/01 Modified final rule now in effect Modified final rule now in effect Changes in marketing & consent Changes in marketing & consent

8. Medical Privacy My role as W.H. coordinator – focus especially on the issues not solely within HHS My role as W.H. coordinator – focus especially on the issues not solely within HHS Law enforcement Law enforcement Payments Payments Military, VA, State, Labor, etc. Military, VA, State, Labor, etc. Executive Order 12/00: limits on using health oversight records for law enforcement Executive Order 12/00: limits on using health oversight records for law enforcement Executive Order 2/00: genetic discrimination Executive Order 2/00: genetic discrimination Now on verge of becoming statute for private sector Now on verge of becoming statute for private sector

9. Financial Privacy Clinton speech 5/99 Clinton speech 5/99 The previous year essentially no privacy in financial reform bill that almost passed The previous year essentially no privacy in financial reform bill that almost passed House bill with half that 6/99 House bill with half that 6/99 Significant Administration push for privacy Significant Administration push for privacy Gramm-Leach-Bliley 11/99 Gramm-Leach-Bliley 11/99 Administration proposal for more, 4/00 Administration proposal for more, 4/00 GLB rules, 2000 GLB rules, 2000 Many banks now feel fortunate with the deal they got Many banks now feel fortunate with the deal they got

10. Some Other Privacy Actions Crypto policy change, 1999 Crypto policy change, 1999 Safe Harbor with E.U., 2000 Safe Harbor with E.U., 2000 Network advertising code, 2000 Network advertising code, 2000 Bankruptcy and privacy study 1/01: public records and privacy issue Bankruptcy and privacy study 1/01: public records and privacy issue National Academy of Sciences study on authentication & privacy National Academy of Sciences study on authentication & privacy Special report on national ID systems Special report on national ID systems

11. Surveillance Issues In 2000, chaired W.H. working group on how to update surveillance law for Internet age In 2000, chaired W.H. working group on how to update surveillance law for Internet age Proposed legislation summer 2000 Proposed legislation summer 2000 Same issues as Patriot Act Same issues as Patriot Act That doubled/tripled new surveillance powersThat doubled/tripled new surveillance powers Took out all our privacy proposals, notably to treat email content like phone callsTook out all our privacy proposals, notably to treat email content like phone calls In 2000, though, Republican Congress criticized us as too surveillance-prone In 2000, though, Republican Congress criticized us as too surveillance-prone Would privacy counselor have chaired the effort under Pres. Bush? Would privacy counselor have chaired the effort under Pres. Bush?

12. Contact Information Phone: (240) 994-4142 Phone: (240) 994-4142 Email: peter@peterswire.net Email: peter@peterswire.netpeter@peterswire.net Web: www.peterswire.net Web: www.peterswire.netwww.peterswire.net Privacy & Information Sharing in the War Against Terrorism at http://ssrn.com/abstract=899626 Privacy & Information Sharing in the War Against Terrorism at http://ssrn.com/abstract=899626 http://ssrn.com/abstract=899626