Why the Federal Government Should Have a Privacy Policy Office

Abstract

This article supports the creation of a Privacy Policy Office in the executive branch, as called for in the 2010 Department of Commerce green paper, “Commercial Data Privacy and Innovation in the Internet Economy: A Dynamic Policy Framework.” The chief criticism of this proposal is that the office would weaken privacy protection. In one vivid turn of phrase, Jeff Chester of the Center for Digital Democracy said: “Having the Commerce Department play a role in protecting privacy will enable the data collection foxes to run the consumer privacy henhouse.” Mr. Chester and other privacy advocates essentially argue that having the Commerce Department play a role in privacy policy will dilute the effectiveness of the privacy efforts of the Federal Trade Commission (“FTC”). I disagree. My arguments support three conclusions. First, the office would provide important benefits to complement what the FTC does. As part of the executive branch, the office would make distinctive contributions to building privacy policy into the development and implementation of U.S. government positions for domestic and international policy. Relatedly, the office would be able to draw on the perspectives and expertise of other federal agencies far more effectively than can an independent agency such as the FTC. Second, the likely outcome with an office would be better protection of privacy than would occur without the office. Third, the likely outcome with an office would be better achievement of other policy goals than would occur without the office. This article also considers whether the office should be placed in the Department of Commerce, as the green paper recommends, or else in the Executive Office of the President, which housed the office of the chief counselor for privacy under President Clinton. I conclude that the important thing is to ensure an ongoing privacy policy capability in the executive branch, while a good case can be made for housing it either in the Commerce Department or the Executive Office of the President.