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FTC-Google Buzz Settlement Clarifies Corporate Privacy Obligations

Supreme Court to Confront Privacy Claims in Drug Marketing Case

Path Forward Murky For Google Books Settlement

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May 2, Washington, DC - Leslie Harris will speak at the UNESCO conference 21st Century Media: New Frontiers, New Barriers.





   

Federal privacy legislation could be introduced in the Senate any day now, taking that debate to a higher level. Meanwhile, the FTC defines some very clear, and broadly applicable, rules for privacy in its settlement on Google Buzz, and CDT comments on an upcoming Supreme Court case that the parties claim is about privacy in ways that CDT believes it isn't.

FTC-Google Buzz Settlement Clarifies Corporate Privacy Obligations

On March 30, the Federal Trade Commission announced a consent decree with Google over charges the company used "deceptive tactics and violated its own privacy promises to consumers" with last year's launch of "Buzz," a social networking service. The decree reaffirms and in some ways expands upon three core elements of privacy as interpreted and applied by the Commission. First, online service providers must obtain user consent before sharing user data in new ways, and the Commission takes a broad view of what is a change requiring opt-in consent. (The key language is "any new or additional sharing ... that is a change from stated sharing practices.") Second, the agency is clearly committed to the principle of "Privacy by Design," spelling out five elements of "a comprehensive privacy program" that Google must implement to address privacy risks related to the development of new and existing products and services. Third is the fact that the consent decree goes beyond traditional definitions of "personally identifiable information" to include IP address, contact lists, and physical location.

Supreme Court to Confront Privacy Claims in Drug Marketing Case

A case pending before the U.S. Supreme Court has potentially enormous implications for consumer privacy, but at CDT we're not convinced that the concept of privacy has been properly invoked in the first place. The case is Sorrell v. IMS Health, and it concerns a Vermont law that prohibits drug companies from using certain data to market drugs to doctors. The information at issue is lists, largely obtained from pharmacies, showing what drugs each doctor prescribes. CDT's health privacy team has published an in-depth memo explaining why the Supreme Court should be careful in accepting the claims about privacy presented in the case.

First, our memo explains why it is important to recognize the valid distinctions between personally identifiable data and "de-identified" data. CDT has been in the lead in exploring the risks of data re-identification, but privacy could actually be harmed if the Court were to accept the claims, made in some briefs in the case, that there is no difference between identified and de-identified data. There is a meaningful difference, and denying it could push towards more use of identified data.

Our memo also dissects the claim that doctors have a "privacy" right in their drug prescribing practices. While the patient-doctor relationship is based on confidentiality and the trust it generates, it is not useful -- and would undermine other health care goals -- to speak of doctors as having a "privacy" right in their drug prescribing practices.

Path Forward Murky For Google Books Settlement

It looks like a federal judge's rejection of a proposed settlement in the class action lawsuit against Google Books may squelch for quite some time the vision of a widely-accessible, nearly comprehensive online digital library. The judge essentially concluded that Google's effort to scan a massive quantity of books, including many "orphaned" and out-of-print works, raised too many unresolved issues, even after Google reached an agreement with authors and publishers.

CDT supported the settlement (while urging that it be modified to better protect readers' privacy) because we support the goal of opening up new ways to access millions of books that otherwise risk falling into obscurity. But the sweeping and forward-looking nature of Google's plans for using the scans sunk the deal. The judge concluded that the settlement re-defined copyright in ways that only Congress could. It is unclear what the next steps will be, although it does seem that the Google database will remain available in some form. Despite past Congressional failure to address the orphan works issue, CDT believes Congress should take up the court's invitation to eliminate the legal obstacles to bringing online the vast numbers of valuable but out-of-print books.

Ask CDT: Global Internet Freedom

Cynthia Wong, director of CDT's International project, answers questions about global Internet freedom.

Handling Twitter Subpoenas Shows Judges Need to Step Up Scrutiny

Jim Dempsey uses the DOJ demand for Twitter records to urge judges to more carefully scrutinize government requests.




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