Republicans poised to take over the House of Representatives in the 112th Congress are voicing concerns about privacy - and in particular, online privacy. The topic has popular resonance, and we expect Congressional rhetoric to continue to impose a soft deterrent on aggressive uses of personal data. But broadcasters utilizing "new media"—including websites and mobile marketing strategies—should not necessarily expect new privacy regulation.
The leadership of the relevant committees in the House of Representatives is uncertain. As for the Energy and Commerce Committee, current Ranking Member Joe Barton (R-TX) and Fred Upton (R-MI) are the most likely candidates for the chairmanship. Front-runners for the chairmanship of the Subcommittee on Communications, Technology and the Internet include current Ranking Member Cliff Stearns (R-FL) and former radio station owner Greg Walden (R-OR).
Rep. Barton has already said that online privacy will be a top priority for the Commerce Committee next year. And Rep. Stearns should continue his established interest in privacy, perhaps dusting off the bipartisan privacy legislation he released in draft form in Spring 2010.
We anticipate, however, that the expressed interest in privacy will go only so far. Committee leaders in both the House and Senate could get a political boost through "soft legislating" by holding hearings and sending letters in informal investigations. These efforts often target personal data processing that has a perceived "creepiness factor," like social networking, targeted behavioral advertising and the collection of children's data. Lawmakers undoubtedly have noticed the impact of "soft legislating," which appeared, for example, to curb deep packet inspection in 2008.
While we anticipate privacy-related activity in the upcoming Congress, we do not expect the passage of generally-applicable privacy legislation. Bills that, for example, impose consent requirements or restrict how data can be used in online advertising would have far-flung adverse effects on business. We doubt that the Republican majority would impose new regulation, barring a public outcry that exceeds the prevailing, general level of unease about online privacy.