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[] CDT Policy Post 11.21: Congress Considers Data Security Legislation

-------- Original Message --------
Subject: Policy Post 11.21: Congress Considers Data Security Legislation
Date: Wed, 7 Sep 2005 15:50:51 -0400
From: Michael Clark <mclark -!
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To: bendrath -!
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CDT POLICY POST Volume 11, Number 21, September 7, 2005

A Briefing On Public Policy Issues Affecting Civil Liberties Online
from The Center For Democracy and Technology

Congress Considers Data Security Legislation

(1) Congress Considers Data Security Legislation
(2) CDT Recommends Key Elements of Legislation
(3) The Current Legislative Landscape

(1) Congress Considers Data Security Legislation

If nothing else positive has come from the seemingly unending string of
data security breaches at corporations, universities and government
agencies over the past year, they have, at the very least, illustrated
the need for Congress to establish stronger protections for citizens'
sensitive personal information.

Data compromises at ChoicePoint, LexisNexis, the U.S. Air Force and
other high-profile companies and organizations have heightened public
concerns about loss of privacy and personal information. Federal and
state lawmakers have responded to those concerns by proposing new legal
protections specifically designed to protect citizens against the
adverse effects of data security failures.

As a starting point, it must be recognized that there is still a need
for baseline federal legislation to address the panoply of privacy
issues posed by the digital revolution. Maintaining strong security is
only one of a number of obligations that should apply to those who
collect, use and store personally identifiable information. However, it
is unlikely that current legislative efforts will address the larger
issues of consumer privacy in the digital age, since enacting federal
legislation on the full range of privacy concerns will require a longer
and more inclusive dialogue than is currently underway.

Nonetheless, CDT believes there are a number of security issues, going
beyond simply notifying citizens when their privacy has been
compromised, that merit immediate attention. They share a common theme,
arising from the rapid growth of the information services industry, the
steep escalation in identity theft, and the government's increasing use
of commercial data. These issues have been the subject of hearings and
are addressed in one form or another in multiple pending bills.

CDT believes that any data privacy and security legislation that
emerges from this Congress must represent a meaningful step forward,
from a consumer perspective, over what states are already doing. CDT
would oppose legislation that addressed the recent spate of data
security breaches in an unduly narrow manner or in a way that resulted
in consumers having weaker protections than those afforded under
current state laws.

CDT's April 13, 2005 congressional testimony on securing electronic
personal data:

CDT's March 2005 Policy Post on information security breaches:

(2) CDT Recommends Key Elements of Legislation

In CDT's view, federal data security legislation should include the
following elements:

- Notice of Breach: Entities, including government entities, holding
  sensitive personal data should be required to notify individuals in the
  event of a security breach. The notice of breach provision should
  afford at least as much protection as the California notice of breach
  law, while avoiding over-notification.

- Security Safeguards: Because notice would be given only after a
  breach had occurred, Congress should require entities that
  electronically store personal information to implement security
  safeguards, similar to those required by FTC rules under
  Gramm-Leach-Bliley (GLB) and California law. Civil fines should be
  available against companies that fail to comply with their own
  safeguards programs.

- Government Uses of Commercial Data: Congress should address issues
  raised by the federal government's growing use of commercial databases,
  especially in the law enforcement and national security contexts, by
  requiring public disclosure of the databases to which the government
  subscribes, government scrutiny of these databases' security safeguards
  as part of the contracting process, and measures to ensure data quality
  and redress when decisions about individuals are made on the basis of
  commercial data.

- Credit Report Freeze: Currently, consumers have limited options to
  protect themselves from fraud when they are notified of a breach or
  otherwise have concerns about the use of their data. Congress should
  allow customers to request a security freeze on their credit reports,
  as at least 10 states already have done.

- Social Security Number (SSN) Protection: SSNs have become the de
  facto national identifier and, especially when used as an
  authenticator, are key enablers of identity theft. Congress should seek
  to end the use of the SSN as an authenticator and should impose tighter
  controls on the disclosure, use, and sale of SSNs, with an appropriate
  phase-in period.

- Consumer Access to Data: Enabling individuals to access their
  personal data files is an important safeguard against inaccuracy and
  misuse, particularly when personal data is collected and maintained for
  disclosure to third parties for their use in risk assessment or other
  decision making. An access regime is well established under the Fair
  Credit Reporting Act (FCRA). Data security legislation should impose
  similar access requirements on information services companies that
  aggregate and sell personal data.

- Carefully Crafted Preemption: Nationwide notice of breach legislation
  should preempt individual state breach notification requirements,
  provided it affords at least as much protection as California's
  notification law. Federal legislation also should preempt inconsistent
  state legislation on other specific subjects addressed in the federal
  law (for example, security standards), following the model of GLB.
  Federal legislation should not, however, take the unusual step of
  preempting state common law or general consumer protection law.

(3) The Current Legislative Landscape

There are a number of bill in Congress in various stages of evolution
that address some of the key elements listed above. Although several
Senate and House committees have competing jurisdiction over these
issues, three bills have emerged with bipartisan support from members
of key committees. Given the public pressure to improve data security
protections, these measures could come up this fall, even though
lawmakers will be primarily focused on hurricane response efforts and
Supreme Court nominations.

The Senate Commerce Committee has considered and approved a bill (S.
1408), introduced by Senators Smith (R-OR), Stevens (R-AK), Inouye
(D-HI), McCain (R-AZ), Nelson (D-FL), and Pryor (D-AR), that provides
for notice of breach, security safeguards, social security number
protections, and a security freeze. While some of the provisions in the
Senate Commerce Committee bill provide good consumer protections, in
CDT's view the preemption provision goes too far. It is drafted so
broadly that it might preclude common law causes of action (cases
alleging simple negligence, for example) under state law.

Prominent members of the Senate Judiciary Committee and House Energy
and Commerce Committee are also working on bills, although neither
committee has held a markup. The Senate Judiciary Committee bill (S.
1332), introduced by Committee Chairman Specter (R-PA) and Senator
Leahy (D-VT), includes provisions on notice of breach, security
safeguards, government use of commercial data, social security number
protections, and consumer access to data.

Top members of the House Energy and Commerce Committee have circulated
a draft bill that covers notice of breach, security safeguards, and
consumer access to data. Lawmakers are likely to introduce the bill in

Other committees with potential claims of jurisdiction over some of
these issues include the Senate Banking, House Financial Services,
Senate Finance, and House Ways and Means. These committees could take
up such issues as credit report freeze requirements or social security
number protection.

Senate Commerce Committee bill, S. 1408:

Specter-Leahy bill, S. 1332:

Other bills pending in Congress can be found at

Detailed information about online civil liberties issues may be
found at .

This document may be redistributed freely in full or linked to .

Excerpts may be re-posted with prior permission of dmcguire -!
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Policy Post 11.21 Copyright 2005 Center for Democracy and Technology

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