Separate Statement of Commissioner Orson Swindle
I have voted to submit "Self-Regulation and Privacy Online: A Report" (the "Report") to Congress, although I have done so with great reluctance. I have voted to submit the Report because we promised the Congress last summer that we would make a recommendation regarding the need for legislation addressing online privacy. I also have voted to submit the Report because it ultimately reaches the correct and obvious conclusion: no legislative action is necessary at this time.
I must add, however, that I do not believe the Report accurately reflects reality. First, the dated and unfavorable results of the 1998 FTC Study are prominently described in the first seven pages of the Report, while the current and favorable results of the 1999 Georgetown survey are relegated to a brief discussion in the middle of the Report. Thus, the Report does not present a clear and complete picture of the substantial progress industry has made in the past year.
Second, the Report overemphasizes the failure of industry to sufficiently implement all elements of comprehensive "fair information practices." The Commission first articulated the elements of these four practices in detail just one year ago. Given the recent vintage of these elements, I believe industry has made substantial progress on them as well.
Third, the Report only sparingly mentions the leadership on privacy issues that IBM, Microsoft, Disney, AOL, The Direct Marketing Association, privacy seal organizations, and many others in the private sector have continuously demonstrated. Faint praises tend to be damning. Industry's leadership in achieving progress should be lauded not buried.
Because the Report provides an inaccurate assessment of the current state of online privacy and of the substantial progress attributable to industry self-regulation, it is perhaps not too surprising that the no legislative action recommendation appears at the very end of the Report, almost as if the recommendation is some trivial afterthought. The Report instead should have emphasized "front and center" that cooperative and creative efforts by a public-private partnership have achieved and will achieve progress far more quickly than more laws and regulations, which, while they may have a "feel good" quality to them, likely will have adverse unintended consequences.
In summary, I think significant progress has been made, but continued vigilance is needed because we are not where we want to be. The way to get where we want to be is not through more laws and regulation. Rather, industry, privacy and consumer advocates, and the Commission should be able to make further progress by continuing to work hard and work together. In the event that our joint efforts do not produce results, I would caution industry that there are many eager and willing to regulate. If industry wants to have the freedom to adopt privacy policies in response to market incentives and not government regulation, I encourage industry to continue to lead the way.