Mixed Messages on Future of Privacy Law in 2011

More mixed messages regarding the chances of federal online privacy legislation passage have emerged. Rep. Cliff Stearns, a Florida Republican, said he will revive the privacy bill draft he floated last year. Meanwhile, a Washington, D.C. privacy lawyer told the audience at a privacy forum Thursday that passage of a privacy bill this year is unlikely.

“It’s unlikely we’ll see any big privacy legislation come out of Congress” this year, said John Nicholson, senior associate at Pillsbury Law and head of the firm’s privacy and data protection practice, based in D.C.

The National Journal reported January 14 that Stearns (pictured above) “is reworking the draft bill” he developed last year with Rep. Rick Boucher, who lost his 2010 re-election bid. A Stearns spokesperson told the publication that the congressman plans “soon” to offer privacy legislation that will take into account comments made regarding the poorly-received draft. Stearns is a member of the Communications and Technology Subcommittee of the House Energy and Commerce Committee, which is a likely home for any new House privacy bill.

Yet, a list of 11 bills proposed by Stearns on the first day of the new congressional session indicates the online privacy legislation could be on the back burner. In a press release, his office named 11 bills he offered on January 6, none of which involved online privacy. Instead, healthcare taxation, Medicare fraud prevention and the Federal Communications Commission’s regulation of the Internet are on his more immediate agenda.

“These are proposals that I offered in the last Congress, some of which were approved by the House, and I hope that all of them will proceed to enactment,” said Stearns in the statement.

The House privacy bill with more momentum is the one proposed last year by Rep. Bobby Rush, an Illinois Democrat. In addition, Democratic Senator John Kerry of Massachusetts indicated last year he will propose a bill relating to online privacy that could be the Senate counterpart to Rush’s bill. Another Massachusetts Democrat, Rep. Ed Markey also announced his intention last year to propose legislation featuring a do-not-track requirement specifically to protect children’s privacy.

Nicholson suggested, there is an “eight-month window” before 2012 election campaigns kick into gear and Congress slows its already slow movement toward passing online privacy legislation; issues such as healthcare are also expected to take precedence during that time. “I’m a little more pessimistic” about Congress passing a privacy bill in 2011, he said, speaking at the Digital Privacy Forum event in New York on Thursday.

He also suggested that, in part because of opposition from Republicans who now control the House, “Do-not-track moving forward in Congress, I think, is unlikely.”