WASHINGTON (08/21/2000) - Two years ago, Vice President Al Gore announced that the Clinton administration was creating the position of chief privacy counselor within the U.S. Office of Management and Budget. A few months later, Peter Swire, an Ohio State University law professor, was named to the position. In judging the move now, it's clear that Swire's post carries only a portion of the authority held by his counterparts in other countries.
The European Union Directive on Data Protection was going into effect at roughly the same time as Swire's appointment. Under the directive, each EU member state was required to pass a conforming law that included the appointment of an independent privacy commissioner. Many countries and provincial governments outside of Europe have similar commissioners.
I have spoken with many commissioners around the world about their roles and offer these key distinctions between the United States and other countries:
- Independence. Most other privacy commissioners head independent agencies.
Their independence affords them the ability to take positions different from those of the legislature and executive branch and even speak openly to the legislature or media about these differences. To most privacy commissioners, this independence is the agency's greatest asset and power. For example, Australia Privacy Commissioner Malcolm Crompton sees his ability to go to the media as central to his mission.
As part of OMB, Swire's office lacks this independence. His proximity to the White House - his office is even in the Old Executive Office Building - has given him growing influence within the administration, yet most privacy advocates and informed observers agree that Swire's lack of independence harms his effectiveness. Specifically, he is unable to make press statements directly (press calls to Swire go through the OMB press office), testify before Congress (OMB policy only allows officials confirmed by Congress to testify) and take positions different from those of the administration.
- Investigative powers. Ontario Privacy Commissioner Ann Cavoukian stresses her ability to undertake privacy investigations in both the private and public sectors as an important tool in her daily work. Even when the law does not enable commissioners to fine companies or agencies, the public spotlight from such investigations is enough to shame organizations into doing the right thing.
In the United States, the Federal Trade Commission has played an important but limited role in investigations of violations of privacy, in such cases where those practices may be deceptive. Swire, however, only has investigatory jurisdiction over executive branch agencies.
OMB released a memo last month suggesting that Swire will have influence in the budget discussions of agencies that do not meet privacy standards. If this memo rings true, it would be a small but important area where Swire would have greater authority than an independent commissioner could have. OMB has been reluctant to impose information policy standards through the budget, so Swire's effectiveness in this area is still being monitored.
- Resources. The biggest difference between the U.S. and other federal privacy offices is its budget. The Dutch Privacy Office has a staff of more than 50 for a country of 15 million. Swire's office has a staff of three for a population more than 15 times the size of Holland's.
Considering all of these obstacles, Swire has done quite a good job in raising privacy as an issue within the White House and the executive branch. But until the United States creates an independent agency with the proper resources, privacy will continue to be a second-tier issue for U.S. policy-makers.
--Schwartz is a policy analyst at the Center for Democracy and Technology in Washington, D.C.