Cameron F. Kerry is the Ann R. and Andrew H. Tisch Distinguished Visiting Fellow in Governance Studies at the Brookings Institution, and is Senior Counsel at Sidley Austin. He previously served as general counsel and acting secretary of the Department of Commerce.
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As a proponent of baseline federal privacy legislation, I am encouraged that proposals that would have been poison pills not long ago, such as individual rights to see, correct and delete data as well as new authority for the Federal Trade Commission, are drawing wide support now. But some crucial and difficult issues remain wide open.
A Congress that begins with a government shutdown carrying over and a raft of subpoenas to the executive branch issued by incoming House committee chairs promises to be at least as polarized and partisan as its predecessor. Even so, legislators want to legislate, and will seek some opportunities for bipartisan agreement. One area where this may happen is federal legislation to protect personal information privacy.
The White House’s announcement of the intended nominations of Travis LeBlanc and Aditya Bamzai to be members of the Privacy and Civil Liberties Oversight Board (PCLOB) is a welcome development for this low-profile but increasingly significant board.
“I Love Lucy” provides the central metaphor for a Brookings paper released today on what to do to protect privacy. It comes from the episode where Lucy goes to work wrapping candies on an assembly line. The line keeps speeding up with the candies coming closer together, and, as they fall farther behind, Lucy and her sidekick Ethel scramble harder to keep up. “I think we’re fighting a losing game,” Lucy says.
There is that classic joke about the difference between an optimist and a pessimist—an experiment in which two children are put in a room to play. The pessimist enters a room full of toys and sits there wailing disconsolately, saying, “Something is going to break.” The optimist enters a room piled high with horse manure and begins rummaging through it enthusiastically, because, “With all this shit, I know there’s got to be a pony somewhere!”
A bill from a strong bipartisan group of House members may reinstate and elevate a version of the cyber coordinator position eliminated as part of Secretary of State Rex Tillerson’s controversial “redesign” in July. The bill recognizes the degree to which protecting security in cyberspace and promoting digital communications as a vital economic, social, and political bridge have become critical to the mission of the U.S. government.
The U.S.-EU Privacy Shield framework, the agreement between the U.S. government and the European Commission that enables continued flows of commercial data from Europe to the United States, is undergoing its first annual review by the Commission and other European institutions. A report on their review is due in September. In the longer term, the Privacy Shield faces potential legal challenges in the Court of Justice of the European Union. [Disclosure: I have advised legal clients on the Privacy Shield and legal challenges.]