Many are curious about what moves a Romney administration might make as it pertains to the ever-growing debate about domestic digital consumer privacy protections and data-handling practices.

It is no secret that Romney is critical of over-regulating business.  So, is it safe to assume that the often discussed executive branch initiatives urging Congress to enact a “privacy bill of rights” would face difficult prospects should Romney win the upcoming presidential race?

Recently, when asked about what consumer privacy initiatives Romney might pursue should he be elected, a campaign spokeswoman stated that today’s commercial landscape “requires trust between consumers and businesses” and that Romney “will review the regulatory regime to ensure that strong and transparent protections are in place.”

In order to find a balance between business and consumer rights, one must begin by recognizing  that a continuing regulatory sledgehammer is not good for the economy.  The Internet is driven by content made available to consumers for free.  In exchange, consumers implicitly agree to provide an advertiser the opportunity to present them with timely and relevant displays or ads that actually improve their experience.  Simply put, the generation of advertising revenue permits the generation of free content.

Over regulation threatenes to end the depth and variety of ad-supported free content and services on the Internet.  Thus, regulatory actions must be cautiously tempered and only legitimate privacy concerns considered.  If regulators and privacy advocates are not careful, their brand of digital exceptionalism could harm the very consumers that they purport to protect.

Republicans have, at least for the time being, put the brakes on White House privacy initiatives in order to critically examine potential impact on business.  At the same time and in conjunction with the National Telecommunications and Information Administration, the Obama administration is moving forward with the design and development of voluntary digital privacy codes of conduct based on its proposed “bill of rights” legislation.  Under the plan, a company’s failure to implement a privacy code after committing to doing so could be treated by the Federal Trade Commission as having violated Section 5 of the FTC Act which prohibits unfair and deceptive practices.

The Romney campaign website currently has nary a word regarding privacy, identity theft or even technology policy.  Given the foregoing, including Romney’s regulatory restraint, it hardly appears likely that current initiatives to improve consumer privacy without relying heavily upon industry self-regulation will continue in the same form and scope under a Romney administration.

Information conveyed in this interview/article is provided for information purposes only and does not constitute, nor should it be relied upon as legal advice. This information is not intended to substitute for obtaining legal advice from an attorney. No person should act or rely on any information in this article without seeking the advice of an attorney.

Written by Richard Newman

Richard Newman is an Internet Lawyer at Hinch Newman LLP specializing in advertising, intellectual property and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns, representing clients in investigations and enforcement actions brought by the Federal Trade Commission and state attorneys general, commercial litigation, advising clients on promotional marketing programs, and negotiating and drafting legal agreements.

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