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What the US Election Results Mean for Privacy

Update:  According to the Washington Post, "A key Republican lawmaker indicated Wednesday [November 3] that Internet privacy could be a legislative priority in the next Congress, as a growing number of data breaches draw increased attention from federal regulators.  Rep. Joe L. Barton (Tex.), ranking GOP member of the House Energy and Commerce Committee, signaled the legislative push in a statement about his correspondence with Facebook executives on privacy issues.  "I want the Internet economy to prosper, but it can’t unless the people’s right to privacy means more than a right to hear excuses after the damage is done," Barton said"

Privacy was not on the ballot yesterday, but the results may affect the prospects for privacy legislation in the new Congress.

The big news is that Congressman Rick Boucher, a respected Virginia Democrat who has served for nearly 19 years, was defeated by Morgan Griffith, a Virginia state legislator. Boucher, along with Congressman Rick Stearns (R-FL) circulated a draft comprehensive privacy bill earlier this year and promised to introduce it after harmonizing it with the bill introduced by Congressman Bobby Rush (D-IL). The election result means that Boucher no longer will chair the House Communications, Technology and the Internet Subcommittee. He may be succeeded by Stearns, who presumably would still favor privacy legislation and make it a subcommittee priority. 

Stearns said earlier this week 

I have worked on developing privacy legislation from the time I was Chairman of the Commerce, Trade & Consumer Protection Subcommittee from 2001 to 2006 and I am still working on it. 

He also is reported to have said that he does not support all the provisions of the Boucher bill and "would like to see a bill" that is less prescriptive and "allows innovation to continue to flourish."

Whether his Republican colleagues now in the majority share his zeal for greater privacy regulation following an election whose theme was less government intervention remains to be seen. Moreover, Stearns also may prefer a leadership role on another committee, leaving the privacy legislation orphaned in the subcommittee. Candidates to lead the opposition on the Communications, Technology and the Internet Subcommittee include Rep. Anna Eshoo (D-CA) whose district includes Google headquarters and Rep. Ed Markey (D-MA). Markey has been vigilant on privacy issues.

A glimpse into the privacy views of presumptive Speaker of the House John Boehner is his lawsuit under the Electronic Communications Privacy Act (ECPA) arising out of the interception and recording of a cell phone conference call Boehner had with Republican leaders concerning an ethics investigation into conduct of Newt Gingrich,  and the fact that he voted yes on retroactive immunity for telecoms’ warrantless surveillance.

Whether privacy becomes a priority for the new Republican leadership is an open question, and will likely be driven by events and the headlines.

New to the US Senate is Connecticut Attorney General Richard Blumenthal, well-known for his aggressive investigations and settlements related to privacy issues. Blumenthal led the thirty-state investigation of Google concerning the company’s collection of user information while mapping out U.S. areas for Street View, and indicated despite the FTC conclusion of its investigation into the episode that his office’s investigation would continue. Blumethal also brought the first data breach enforcement action under the HITECH Act against Health Net earlier this year.  It is fair to expect Blumenthal’s focus on privacy to continue once he is sworn in.

Despite the fear that the new political landscape in Washington means nothing but gridlock, some believe that privacy is one of the few issues that “will get done”.