Oct 9, 2018

The Internet Bill of Rights

Thomas & LoCicero Partner Susan Tillotson Bunch offers a fresh, practical perspective on the newly conceived “Internet Bill of Rights.”

Kara Swisher’s recent article in The New York Times offers an interesting take on the proposed Internet Bill of Rights created by Ro Khanna, the Democratic representative whose California district is home to Apple, Intel and Yahoo.  Mr. Khanna was asked by Nancy Pelosi, Minority Leader of the U.S. House of Representatives, to create a set of principles “to protect the privacy of the American people and to establish overarching values” that everyone can adhere to and agree upon. Or, as Ms. Swisher wryly but aptly remarks, “Horse, meet barn door.”

The “Internet Bill of Rights” proposed by Mr. Khanna is only partly directed at privacy concerns, enumerating rights of net neutrality and access to competitive providers and services in addition to eight data privacy rights.

The privacy sections reflect fair information principles generally recognized outside the United States for decades and currently reflected in the recently effective General Data Protection Regulation (GDPR), its predecessor, the European Union (EU) Data Protection Directive and the privacy framework known as “Privacy by Design” (PbD).

Such sweeping goals are certainly sound, aspirational objectives (and no doubt politically expedient as mid-terms approach amid growing consumer angst over data protection). However, their implementation will be anything but simple in the United States, for a number of reasons. First, unlike Europe, the US historically has not viewed information privacy as a fundamental right. As a result, privacy considerations have not been inherent in American data collection and handling practices. Nor have US regulators taken a privacy-centric approach, instead relying on sectoral and fragmented legislation, sometimes augmented by state laws, sometimes not.

As emerging technologies rapidly continue to evolve, so does the number and variety of connected devices and apps. This diversity presents increasingly complicated levels of interoperability needs. Software and hardware professionals face daunting challenges maintaining functionality and security even without confronting a mandate to embed privacy principles at the design level. 

Of course, setting aside the practical challenges to achieving the privacy ideals, some principles, such as the “Right to be Forgotten,” may be at odds with other U.S. rights, including those guaranteed by the First Amendment.

Not to mention, as Ms. Swisher notes, the “barn door” factor.

With offices in Tampa and Fort Lauderdale, Thomas & LoCicero is a Florida law firm that is widely known, respected and committed to free speech and a free press.  The firm represents the industry’s leading electronic and traditional publishers, as well as individual journalists, bloggers and influencers of social media on issues ranging from news gathering to invasion of privacy, from defamation to pre-publication review.  At the heart of the firm’s mission is to champion free speech and defend journalism every day.

Susan Tillotson Bunch is a partner in the firm’s Tampa office.  Her practice focuses in the areas of privacy, technology, advertising, marketing, promotions and media law.

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