There are a lot of indications that passing a federal privacy law here in the U.S. is finally a realistic probability. Sure, there are details to iron out, and we've got to get past this impasse we seem to find ourselves at on pre-emption, but few insiders would disagree we'll see a law in the near future — "near" being a relative term.
And if we're looking for writing on the wall, one high-profile public figure's recent transition is perhaps just that. Cameron Kerry, who has spent the last five years at law firm Sidley Austin, is leaving private practice to focus on the proliferation of a U.S. federal law full time at the Brookings Institution.
Kerry is perhaps uniquely positioned for the role because of his past gigs. Kerry spent five years as general counsel and acting secretary at the Department of Commerce, he is a visiting scholar at MIT Media Lab, and he has worked extensively in the private sector.
"I’m sort of a cross of civil society, corporate, academic community, as well as stakeholders on the Hill, to continue trying to find the path that will get us to baseline privacy legislation," Kerry said.
He said the palpable shift in momentum on crafting federal legislation — a proliferation of federal bills, hearings in the U.S. House and Senate, as well as frequent stakeholder meetings of the mind — incited the decision to dedicate all his professional time to the cause.
"It’s radically different now," Kerry said. "There are things that are almost givens in this conversation that would have been off the table a few years ago. Now the discussion has really taken off, and I wanted to be able to be engaged. It became clear to me that I could not engage as fully as I wanted to in the context of law firm, both in terms of my obligations to the firm and the obligations to its clients. I wanted the time and the freedom to really go into this body and soul."
And it wasn't as if the move is too much of a gamble. After all, Kerry's not new to Brookings. He has been a visiting fellow since his time at the Department of Commerce under the Obama administration. He feels it's the right venue to have important conversations with people he's relationship-building with for years.
"Brookings is a terrific platform for public policy debate in Washington, it’s also, kind of in the context of this debate, a jungle watering hole for the stakeholders, and I have a role from my previous work as somebody who can talk to various parties and try to figure out a path forward. ... It’s kind of a unique place to be involved and weave all of those things together — the government experience, legal private sector experience— and to be an activist."
But why is this so important to him? Why leave a comfortable position at a reputable law firm to put yourself in the middle of a sometimes-contentious national tug-of-war between industry, academics and advocates on how we legislate privacy and data protection in this country?
"I ask myself that sometimes," he laughs. "Look, I have been active politically all my life. I’m fortunate that I can play this role. In my life, I’ve done a lot of negotiating and mediating." He said, in a sense, there's already a model for the role Kerry hopes to play in pushing legislation forward given his time at the Department of Commerce when he helped to quarterback the effort to get patent reform legislation passed. "And part of that effort was helping to mediate among some of the special interest groups and get to an accommodation between tech and pharma that enabled and cleared a path for the bill that passed."
For Kerry, it's important a number of provisions are included in whatever bill comes out on top, namely that U.S. residents have the right to access and correct the data collected and stored on them and the right to data portability. He also wants to see the Federal Trade Commission granted rulemaking authority under a national law. That's something he said was "off the table" when he and his peers were working on the Consumer Privacy Bill of Rights under Obama, and that's where some companies that otherwise would have supported a bill did not. Now, that's shifted. The U.S. Chamber of Commerce and industry group Business Roundtable, for example, have indicated support for FTC rulemaking.
He attributes shifts like that to a couple of things: First, the passing of the EU General Data Protection Regulation and the realization that here in the U.S. we'd need to keep up if we want to compete globally. Second, the increasing "trust issues that came out of Snowden and generally greater awareness of data collection and use, and unease about that."
Then he said, breaches like those at Equifax and Cambridge Analytica, coupled with the passage of the California Consumer Privacy Act, really "created a political demand for legislation." It's really pretty extraordinary, he said, the level of interest in crafting legislation.
"You have committees jockeying to be involved; you have people who aren't on any relevant committees putting forth bills and principles," he said. "It is the privacy moment! Privacy pros are getting their day in the sun."
That doesn't mean there aren't worries to be had. Kerry said federal legislation's inclusion of guardrails on the collection and use is essential, and that's not a given.
"Everybody in the privacy world recognizes the failures of limitations on notice and choice, but some policymakers have not wrapped their minds around that yet," Kerry said of his concerns. "I think people who've been paying attention and some key drafters get that, but it's clear from the [recent] hearings and other discussions that not everybody is there yet."
Kerry wouldn't put a number on when he sees a privacy bill becoming a law or whether that bill exists yet, though he did recently breakdown current proposals in this blog post. But he was willing to say that the bill to watch: whatever comes out of the Senate Commerce, Science, and Transportation Committee working group.
"That is likely to be the vehicle for any ultimate legislation because you've got significant players — in a key committee of jurisdiction — who have been working very hard and thoughtfully on this and making a serious effort to legislate and are positioned to try to move that forward."
For now, only time will tell if Kerry's prediction is correct.
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