[Federal Register Volume 77, Number 43 (Monday, March 5, 2012)]
[Notices]
[Pages 13098-13101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-5220]


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DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

[Docket No. 120214135-2135-01]
RIN 0660-XA27


Multistakeholder Process To Develop Consumer Data Privacy Codes 
of Conduct

AGENCY: National Telecommunications and Information Administration, 
U.S. Department of Commerce.

ACTION: Request for public comments.

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SUMMARY: The National Telecommunications and Information Administration 
(NTIA) is requesting comment on substantive consumer data privacy 
issues that warrant the development of legally enforceable codes of 
conduct, as well as procedures to foster the development of these 
codes. NTIA invites public comment on these issues from all 
stakeholders with an interest in consumer data privacy, including the 
commercial, academic and civil society sectors, and from federal and 
state enforcement agencies.

DATES: Comments are due on or before 5 p.m. Eastern Daylight Savings 
Time on March 26, 2012.

ADDRESSES: Written comments may be submitted by email to 
[email protected]. Comments submitted by email should be 
machine-searchable and should not be copy-protected. Written comments 
also may be submitted by mail to 1401 Constitution Avenue NW., Room 
4725, Washington, DC 20230. Responders should include the name of the 
person or organization filing the comment, as well as a page number, on 
each page of their submissions. All comments received are a part of the 
public record and will generally be posted to http://www.ntia.doc.gov/category/internet-policy-task-force without change. All personal 
identifying information (for example, name, address, etc.) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
Confidential Business Information or otherwise sensitive or protected 
information. NTIA will accept anonymous comments (enter ``N/A'' in the 
required fields if you wish to remain anonymous).

FOR FURTHER INFORMATION CONTACT: Aaron Burstein, National 
Telecommunications and Information Administration, U.S. Department of 
Commerce, 1401 Constitution Avenue NW., Room 4725, Washington, DC 
20230; telephone (202) 482-1055; email [email protected]. Please 
direct media inquiries to NTIA's Office of Public Affairs, (202) 482-
7002.

SUPPLEMENTARY INFORMATION:

Background

    The Executive Office of the President released Consumer Data 
Privacy in a Networked World: A Framework for Protecting Privacy and 
Promoting Innovation in the Global Digital Economy (the ``Privacy and 
Innovation Blueprint'') on February 23, 2012. Two central elements of 
the Privacy and Innovation Blueprint are: (1) A Consumer Privacy Bill 
of Rights, which is a set of principles the Administration believes 
should govern the handling of personal data in commercial sectors that 
are not subject to existing Federal privacy statutes; and (2) a 
multistakeholder process, which NTIA will convene, to develop legally 
enforceable codes of conduct that specify how the Consumer Privacy Bill 
of Rights applies in specific business contexts.
    These discussions will be open to participation by all interested 
stakeholders, transparent, and consensus-driven.\1\ Open participation 
is necessary to ensure that codes of conduct reflect input from the 
broad array of stakeholders that have interests in putting the Consumer 
Privacy Bill of Rights into practice. Any person or organization may 
choose to participate, no one is under an obligation to participate 
once discussions have started, and NTIA anticipates that there will be 
opportunities to join a process once it is underway. Transparency is 
necessary to allow those who do not participate in the process to 
understand how participants reached their decisions. Consensus of a 
broad set of stakeholders, achieved through a transparent process, will 
lend legitimacy to the code of conduct. At the same time, consensus 
will encourage companies to adopt codes of conduct; the decision to 
adopt a code of conduct is voluntary, and companies are unlikely to 
adopt a code about which they have serious reservations.\2\
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    \1\ Privacy and Innovation Blueprint at 2, available at http://www.whitehouse.gov/sites/default/files/privacy-final.pdf (proposing 
a privacy multistakeholder process that consists of ``open, 
transparent forums in which stakeholders who share an interest in 
specific markets or business contexts will work toward consensus on 
appropriate, legally enforceable codes of conduct''); id. at 23-25, 
37 (discussing importance of consensus in multistakeholder processes 
that develop Internet policy and standards).
    \2\ See Privacy and Innovation Blueprint at 23-24, 37 
(discussing importance of consensus in multistakeholder processes).
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    The privacy multistakeholder process is voluntary. A code of 
conduct will not be binding on a company unless and until that company 
affirmatively commits to follow it. NTIA expects that a company's 
public commitment to follow a code of conduct will be legally 
enforceable, provided the company is subject to the Federal Trade 
Commission's jurisdiction.\3\ Enforceable codes of conduct based on the 
principles set forth in the Consumer Privacy Bill of Rights will 
provide consumers clear, understandable baseline protections and give 
businesses greater certainty about how agreed upon privacy principles 
apply to them. Companies will build consumer trust by engaging directly 
with consumers and other stakeholders during the process and adopting a 
code of conduct that stakeholders develop through this process.\4\ 
Moreover, in any enforcement action based on conduct covered by a code, 
the FTC would likely consider a company's adherence to such a code 
favorably.\5\
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    \3\ Currently, the Federal Trade Commission (FTC) brings cases 
based on violations of a company's public commitments in its privacy 
statements under the FTC's authority to prevent deceptive acts or 
practices. See 15 U.S.C. 45. A code of conduct developed through a 
multistakeholder process likely would be enforceable under this 
authority.
    \4\ Privacy and Innovation Blueprint at 24.
    \5\ Id.
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    NTIA's role in the privacy multistakeholder process will be to 
provide a forum for discussion and consensus-building among 
stakeholders. In situations in which stakeholders disagree over how 
best to interpret the Consumer Privacy Bill of Rights, NTIA's role, as 
explained in the Privacy and Innovation Blueprint, ``will be to help 
the parties reach clarity on what their positions are and whether there 
are options for compromise toward consensus, rather than substituting 
its own judgment.'' \6\ Furthermore, stakeholder groups convened to 
develop codes of conduct will not be advisory committees, as neither 
NTIA nor any other Federal agency or office will seek consensus advice 
or recommendations

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on policy issues from participants in these privacy multistakeholder 
processes.\7\
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    \6\ Id. at 27.
    \7\ See id. at 24 (stating that ``the stakeholders themselves 
will control the process and its results'' and ``[t]here is no 
Federal regulation at the end of the process''). Because 
participants will not provide ``advice or recommendations'' as a 
group to the Federal Government, the multistakeholder processes 
discussed here should not be subject to the Federal Advisory 
Committee Act, 5. U.S.C. App. 2. See id. Sec.  3(2) (defining 
``advisory committee'' to include the establishment or utilization 
of a group ``in the interest of obtaining advice or recommendations 
for the President or one or more agencies or officers of the Federal 
Government,'' subject to certain exceptions).
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Request for Comment

Consumer Data Privacy Issues To Address Through Enforceable Codes of 
Conduct

    NTIA plans to facilitate the development of enforceable codes of 
conduct that implement the full Consumer Privacy Bill of Rights. 
Initially, NTIA seeks to conduct a privacy multistakeholder process 
focused on a definable area where consumers and businesses will receive 
the greatest benefit in a reasonable timeframe. Areas of consumer data 
privacy in which stakeholders have begun to collaborate to develop 
practices, or to develop consensus around specific practices, could 
provide such a starting point. For example, commenters on the 
Department of Commerce's ``Privacy and Innovation Green Paper'' \8\ 
were in broad agreement that transparency is a key element of 
protecting consumers' privacy. An initial privacy multistakeholder 
process could focus on the Privacy and Innovation Blueprint's call to 
give consumers ``easily understandable and accessible information about 
privacy and security practices'' in a particular business setting.\9\ 
Future iterations of the process could build on this initial work 
toward a comprehensive, enforceable code of conduct for that setting.
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    \8\ Department of Commerce, Commercial Data Privacy and 
Innovation in the Internet Economy: A Dynamic Policy Framework, Dec. 
16, 2010, http://www.ntia.doc.gov/reports/2010/IPTF_Privacy_GreenPaper_12162010.pdf.
    \9\ The full statement of the Transparency principle in the 
Consumer Privacy Bill of Rights is as follows:
    Transparency: Consumers have a right to easily understandable 
and accessible information about privacy and security practices. At 
times and in places that are most useful to enabling consumers to 
gain a meaningful understanding of privacy risks and the ability to 
exercise Individual Control, companies should provide clear 
descriptions of what personal data they collect, why they need the 
data, how they will use it, when they will delete the data or de-
identify it from consumers, and whether and for what purposes they 
may share personal data with third parties.
    Privacy and Innovation Blueprint at 14.
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    To identify potential consumer data privacy topics that would 
benefit from a multistakeholder process as well as risks and concerns, 
NTIA seeks comment from stakeholders.
    1. NTIA seeks comment on what issues should be addressed through 
the privacy multistakeholder process. Among a variety of alternatives, 
NTIA is considering convening an initial multistakeholder process to 
facilitate the implementation of the Transparency principle in the 
privacy notices for mobile device applications (``mobile apps''). 
Mobile apps are gaining in social and economic importance.\10\ However, 
as several commenters on the Privacy and Innovation Green Paper noted, 
mobile devices pose distinct consumer data privacy issues, such as 
disclosing relevant information about personal data practices on a 
small display.\11\ Moreover, practices surrounding the disclosure of 
consumer data privacy practices do not appear to have kept pace with 
these rapid developments in technology and business models. Recent 
studies found that 33 percent of the top 10 paid mobile apps for three 
major mobile phone operating systems (thus, a total of 30 paid apps 
were studied), and 66 percent of the top 10 free mobile apps for the 
same operating systems, have privacy policies,\12\ while a broader 
study found that only 19 percent of free mobile apps have a link to a 
privacy policy.\13\ With respect to apps directed at children, a recent 
FTC report found that parents generally cannot determine which app 
poses privacy risks to their children before downloading an app.\14\ A 
common set of practices that implement the Transparency principle in 
the Consumer Privacy Bill of Rights could provide guidance to mobile 
apps developers, operating systems, and apps stores, as well as better 
inform consumers about how mobile apps use personal data. An NTIA-
convened effort toward this end could build on initial efforts to 
develop codes of conduct and best practices for mobile apps and devices 
\15\ and complement recent commitments by mobile device platform 
providers to promote transparency in the mobile arena.\16\
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    \10\ A recent report that summarizes current app economy data is 
Gartner, Inc., Gartner Says Worldwide Mobile Application Store 
Revenue Forecast to Surpass $15 Billion in 2011, Jan. 26, 2011, 
http://www.gartner.com/it/page.jsp?id=1529214; Il-Horn Hann, Siva 
Viswanathan, and Byungwan Koh, The Facebook App Economy, Sept. 19, 
2011, http://www.rhsmith.umd.edu/digits/pdfs_docs/research/2011/AppEconomyImpact091911.pdf (estimating that ``employment impact of 
developers building apps on the Facebook Platform in the United 
States in 2011 is 182,744 full time jobs'' and ``the total 
employment value of Facebook's app economy is $12.19 billion'').
    \11\ See, e.g., Ann Cavoukian, Ph.D., Comment on the Privacy and 
Innovation Green Paper, at 5, Jan. 27, 2011; Center for Democracy & 
Technology Comment on the Privacy and Innovation Green Paper, at 10, 
Jan. 28, 2011; CTIA--The Wireless Association Comment on the Privacy 
and Innovation Green Paper, at 4, Jan. 28, 2011; TRUSTe Comment on 
the Privacy and Innovation Green Paper, at 8, Jan. 28, 2011.
    \12\ See Future of Privacy Forum, FPF Survey: Free Mobile Apps 
Better than Paid on Privacy Policies, Dec. 19, 2011, http://www.futureofprivacy.org/2011/12/19/fpf-survey-finds-free-mobile-apps-better-than-paid-on-privacy-policies/(reporting on a study of 
paid apps conducted in May 2011 and a study of free apps conducted 
in December 2011).
    \13\ TRUSTe, More Consumers Say Privacy--Over Security--is 
Biggest Concern When Using Mobile Applications on Smartphones, Apr. 
27, 2011 (reporting results of survey of top 340 free mobile apps 
conducted jointly with Harris Interactive), http://www.truste.com/blog/2011/04/27/survey-results-are-in-consumers-say-privacy-is-a-bigger-concern-than-security-on-smartphones/.
    \14\ See, e.g., FTC, Mobile Apps for Kids: Current Privacy 
Disclosures are Disappointing (staff report), at 17, available at 
http://www.ftc.gov/os/2012/02/120216mobile_apps_kids.pdf.
    \15\ See, e.g., CTIA, Best Practices and Guidelines for Location 
Based Services, available at http://www.ctia.org/business_resources/wic/index.cfm/AID/11300 (last visited Jan. 18, 2012); 
Future of Privacy Forum and Center for Democracy & Technology, Best 
Practices for Mobile Applications Developers, available at http://www.futureofprivacy.org/wp-content/uploads/Apps-Best-Practices-v-beta.pdf (last visited Jan. 18, 2012); GSMA, Mobile and Privacy: 
Privacy Design Guidelines for Mobile Application Development, Feb. 
2012, available at http://www.gsma.com/go/download/?file=gsmaprivacydesignguidelinesformobileapplicationdevelopmentv1.pdf; Mobile Marketing Association, Global Code of Conduct, July 15, 
2008, available at http://mmaglobal.com/codeofconduct.pdf; 
PrivacyChoice, Mobile Policymaker, http://privacychoice.org/resources/policymaker (last visited Jan. 18, 2012). In addition, the 
Federal Trade Commission (FTC) has called for stakeholders to 
``identify the best means and place for conveying data practices in 
plain language and in easily accessible ways on the small screens of 
mobile devices.'' FTC, Mobile Apps for Kids: Current Privacy 
Disclosures are Disappointing, supra note 14, at 3. See also FTC, 
FTC Seeks Input to Revising its Guidance to Business About 
Disclosures in Online, May 26, 2011, available at http://www.ftc.gov/opa/2011/05/dotcom.shtm.
    \16\ See California Office of the Attorney General et al., Joint 
Statement of Principles, Feb. 22, 2012, http://ag.ca.gov/cms_attachments/press/pdfs/n2630_signed_agreement.pdf.
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    NTIA seeks comment on other potential topics, including:
     Other issues associated with mobile apps in general (e.g., 
a code of conduct that implements the full Consumer Privacy Bill of 
Rights)
     Mobile apps that provide location-based services
     Cloud computing services, i.e., those that store data in 
architectures that provide on-demand self-service, broad network 
access, resource pooling, rapid elasticity, and measured

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service; \17\ or specific cloud computing market segments
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    \17\ See Peter Mell and Tim Gance, The NIST Definition of Cloud 
Computing, version 15, Oct. 7, 2009, http://csrc.nist.gov/groups/SNS/cloud-computing/cloud-def-v15.doc (characterizing cloud 
computing with these five characteristics).
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     Accountability mechanisms (to enable companies to 
demonstrate how they are implementing the Consumer Privacy Bill of 
Rights)
     Online services directed toward teenagers (individuals 13 
or older and younger than 18)
     Online services directed toward children (individuals 
under 13 years old) \18\
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    \18\ A privacy multistakeholder process could extend protections 
required of online services directed toward children under 13 years 
old under the Children's Online Privacy Protection Act of 1998 
(COPPA), 15 U.S.C. 6501-6506. The FTC's COPPA Rule can be found at 
16 CFR Part 312.
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     Trusted identity systems, such as those discussed in the 
National Strategy for Trusted Identities in Cyberspace \19\
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    \19\ Executive Office of the President, National Strategy for 
Trusted Identities in Cyberspace: Enhancing Online Choice, 
Efficiency, Security, and Privacy, Apr. 2011, http://www.whitehouse.gov/sites/default/files/rss_viewer/NSTICstrategy_041511.pdf.
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     The use of multiple technologies, e.g., browser cookies, 
local shared objects, and browser cache, to collect personal data
    This list is not exhaustive, and NTIA welcomes comments on any of 
these topics as well as descriptions of other topics that commenters 
would like NTIA to consider for the privacy multistakeholder process.
    2. Please comment on what factors should be considered in selecting 
issues for the privacy multistakeholder process.

Implementing the Multistakeholder Process

    Commenters also may wish to provide their views on how stakeholder 
discussions of the proposed issue(s) should be structured to ensure 
openness, transparency, and consensus-building. Analogies to other 
Internet-related multistakeholder processes, whether they are concerned 
with policy or technical issues, could be especially valuable.\20\ 
Possible subjects for comment include:
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    \20\ Potentially relevant examples mentioned in the Privacy and 
Innovation Blueprint include the Internet Corporation for Assigned 
Names and Numbers (ICANN), the Internet Engineering Task Force 
(IETF), and the World Wide Web Consortium (W3C). Privacy and 
Innovation Blueprint at 25. The Internet Governance Forum (IGF) is 
another potentially relevant multistakeholder forum for Internet 
policy development. See Internet Governance Forum, The Internet 
Governance Forum, http://www.intgovforum.org/cms/ (last visited Feb. 
3, 2012). NTIA welcomes discussion of these and any other examples 
of multistakeholder policy development processes that commenters 
believe are relevant to developing privacy-related codes of conduct.
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Open Participation

    The Privacy and Innovation Blueprint calls for a code of conduct 
development process that is open to any interested participant. A broad 
array of perspectives and expertise will be necessary to ensure that 
the privacy multistakeholder process thoroughly addresses the issues 
before it. NTIA, as convener of the privacy multistakeholder process, 
will not set criteria that prospective participants must meet, such as 
their ability to represent specific industries or consumer interests. 
Nonetheless, there may be practical obstacles to such broad 
participation. For example, the time required to participate and the 
expense of attending in-person meetings may make it difficult for some 
stakeholders to participate. The following questions seek input on how 
NTIA can keep these barriers to a minimum and ensure that the privacy 
multistakeholder process is open, as a practical matter, to all 
interested stakeholders.
    3. How can NTIA promote participation by a broad range of 
stakeholders, i.e., from industry, civil society, academia, law 
enforcement agencies, and international partners?
    4. Which stakeholders should participate? What kinds of expertise 
or perspectives should participants have?
    5. How can NTIA best ensure the process is inclusive, given that 
participants will likely have different levels of resources available 
to support their participation?
    6. Are pre-requisites for participating in the privacy 
multistakeholder process consistent with the principle of openness? For 
example, what impact would a requirement to submit a brief position 
paper in advance of a stakeholder meeting have on participation?
    7. What balance should NTIA seek to achieve between in-person and 
virtual meetings?

Transparency

    Providing timely, relevant information in an accessible manner is 
crucial to effective transparency.\21\ Transparency, in turn, will 
enable all stakeholders to understand how decisions within the privacy 
multistakeholder process are reached, whether they participate in the 
process or not.
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    \21\ See Memorandum for the Heads of Executive Departments and 
Agencies, Open Government Directive, Dec. 8, 2009, available at 
http://www.whitehouse.gov/open/documents/open-government-directive; 
Memorandum for the Heads of Executive Departments and Agencies, 
``Transparency and Open Government,'' Jan. 21, 2009, available at 
http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment/.
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    8. Which technologies could facilitate discussions among 
stakeholders before, during, and after in-person meetings?
    9. How should discussions during meetings be memorialized and 
published? Are verbatim transcripts or full recordings necessary, or 
would a more abbreviated record be appropriate?
    10. How can NTIA facilitate broad public review of codes of conduct 
during their development?
    11. What procedures should stakeholders follow to explain their 
decisions on issues discussed within the privacy multistakeholder 
process?
    12. What procedures should stakeholders follow to explain decisions 
they reach in concert with other stakeholders?

Building Consensus

    Ideally, stakeholders who decide to help develop an enforceable 
code of conduct will do so with a ``willingness to work in good faith 
toward reaching consensus on the code's provisions.'' \22\ Consensus, 
however, does not have a single definition. The obstacles to consensus 
are also likely to vary, based in part on how consensus is defined. 
NTIA seeks comments on how other multistakeholder processes in the 
Internet policy and standards realms have defined and reached (or 
failed to reach) consensus.
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    \22\ Privacy and Innovation Blueprint at 26.
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    13. Are there lessons from existing consensus-based, 
multistakeholder processes in the realms of Internet policy or 
technical standard-setting that could be applied to the privacy 
multistakeholder process? If so, what are they? How do they apply?
    14. How did those groups define consensus? What factors were 
important in bringing such groups to consensus?
    15. Are there multistakeholder efforts that have failed to achieve 
consensus? Why did these efforts fail to reach consensus? What policies 
or standards, if any, resulted from these efforts?
    16. In what ways could NTIA encourage stakeholders to reach 
consensus? Under what circumstances should NTIA facilitate discussions 
among sub-groups of stakeholders to help them reach consensus? In these 
cases, what measures would be necessary to keep the overall process 
transparent?
    Response to this Request for Public Comments is voluntary. 
Commenters are free to address any or all of the issues identified 
above, as well as provide

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information on other topics that they think are relevant to developing 
policies consistent with open, transparent, voluntary, consensus-based 
processes for developing consumer data privacy codes of conduct. Please 
note that the Government will not pay for response preparation or for 
the use of any information contained in the response.

    Dated: February 29, 2012.
Lawrence E. Strickling,
Assistant Secretary for Communications and Information.
[FR Doc. 2012-5220 Filed 3-2-12; 8:45 am]
BILLING CODE 3510-60-P