CONSUMER PRIVACY, NATIONAL SECURITY AND THE

CONSUMER PRIVACY, NATIONAL SECURITY AND THE GLOBAL FIRM

Philip Larson, 3E, GMUSL, [email protected]/10/2007

I. INTRODUCTION

The commercial distribution of consumers’ personal information is rapidly

increasing. While this information can be used to benefit consumers by providing them

with more choices and personalized services, it can also be misused in ways that invade

consumers’ privacy, increase the threat to national security and inhibit economic growth.

Two emerging technologies – Service-Oriented Architectures (SOAs) and Business

Process Management Suites (BPM) – are breaking down organizational processes into

individual tasks and other manageable segments. These technologies have made it more

common for an organization’s business processes to consist of a network of decentralized

services. To benefit from cheap foreign labor markets, organizations are outsourcing

more services in their core business processes. While outsourcing helps organizations

reduce costs, it also places consumers’ personal information into the hands of a growing

number of foreign commercial entities increasing the likelihood of misuse.

To address these privacy and national security concerns, the United States should

enact comprehensive federal privacy legislation. Part II of this article describes how

SOA and BPM technology are enabling companies to outsource business processes and

thereby distribute consumers’ personal data to growing numbers of global service

providers. Part III explains how self-regulation has provided insufficient protection for

consumers’ privacy. Part IV discusses the limitations of the existing “sectional”

approach to United States federal privacy law in regulating abuses by third-party

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outsourcing service providers. Part V argues that Congress should address these

deficiencies by enacting comprehensive federal privacy legislation.

II. THE ADOPTION OF EMERGING TECHNOLOGIES AND INCREASED

DEPENDENCE ON OUTSOURCING ARE MAGNIFYING THREATS TO

NATIONAL SECURITY POSED BY MISUSE OF CONSUMER DATA.

The world is getting smaller. Organizations are adopting emerging technologies

that are making it easier to transact with service providers located anywhere in the world.

As a result, consumers’ personal information is increasingly being distributed to a wider

network of companies magnifying the risk of abuse. These data privacy and security

abuses are a threat to national security.

A. Business Process Outsourcing (BPO) and Networks of Global Service Providers.

Outsourcing is the practice of shifting an organization’s operations to a third party

vendor.1 Business process outsourcing (BPO) occurs when an organization leverages

third party services to streamline any number of processes from administrative support to

product development.2 The market for BPO is growing rapidly in multiple industries. On

a global scale, IDC has estimated that the worldwide market for BPO will reach $641.2

billion by 2009, up from $382.5 billion in 2004.3 Even Gartner Group's more

conservative estimate for BPO growth suggests the market in North America alone will

be $110 billion by 2009.4 Moreover, Gartner argues that the BPO market will continue to

outpace other IT services and will see compound annual growth rates of 8.8% through

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2009.5 While there are many models of outsourcing, the two most common are on-

shoring - outsourcing to a vendor located domestically - and off-shoring - outsourcing to

a vendor in a different country.6 While India is the preferred destination for offshore

BPO, it is expected there will be continued growth of outsourcing to China and Eastern

Europe.

Organizations have cited many drivers for this trend. Cost savings is the most

obvious and frequently cited driver, with some estimates arguing that outsourcing can cut

costs by 25-30% and up to 50% when off-shored.7 For example, a study by University of

California at Berkeley found that programming jobs paying $60-80k in the United States

go for as little as $8,952/year in China, $5,880 in India and $5,000 in Russia.8

Outsourcing enables organizations to focus attention on their core competencies without

the distraction of having to manage non-core services.9 Moreover, by using off-shore

vendors in different time zones, organizations benefit from consistent, round-the-clock

access to these outsourced services. In customer service processes, this can reduce the

difficulty of managing 24/7 customer support agreements. In product development

processes, this can reduce the time required to bring a new product to market.10

While the benefits driving adoption of BPO are clear, there are certain important

risks to consider. Companies fear losing control over core business operations and

processes as well as losing expertise and industry knowledge to these third party service

providers.11 The financial instability of outsourcing vendors is another concern.

Moreover, as more third parties participate in an organization’s business processes data

national security is threatened from an increased likelihood of privacy and information

security abuse.12

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B. Service-Oriented Architectures (SOAs) are Enabling Businesses to Leverage

Services from Global Third-Party Service Providers.

Service-Oriented Architecture (SOA) projects are becoming more common across

a number of different industries.13 An SOA is an approach to software architecture that

exposes an organization’s business components as reusable “services.”14 These services

are self-contained, reusable software components that can be invoked in a standard way

by other people and systems over the Internet.15

The scope of a service in an SOA has a wide range of uses. It may be a simple,

one-step task, such as updating an employee’s home address, or a more complex task

involving processing an invoice or approving a loan application. In the travel industry,

for instance, there are services that check hotel availability, book airline tickets, and make

dinner reservations. Each of these autonomous services might be provided by separate

vendors and combined by a single organization to create an overall “vacation” process.

An SOA enables applications to easily pass data over the Internet to invoke

services from anywhere in the world. Therefore, in addition to enabling geographic

independence, an SOA makes it easier for an organization to outsource services in its

business processes to third parties.16 It is therefore understandable that the adoption of

SOA is gaining momentum, particularly in global organizations looking to outsource

aspects of its operations.17 While older applications typically reside in a single

geographic location, SOAs are enabling applications to be built as a composition of

services provided by multiple vendors located anywhere in the world. As long as the

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performance, reliability and security of the services are sufficiently high, they can be

linked together as parts of these composite applications.18

Naturally, the implementation and use of an SOA creates data security and data

privacy concerns.19 Many technologists and thought leaders are currently of the mind

that as long as quality of service are sufficient, including performance, reliability and

security, it does not matter where on the planet the service is provided.20 The messages

exchanged between these services often contain user credentials and other personal

information necessary to invoke the service.21 This personal information may include

names, addresses, Social Security numbers or even credit card and banking information.

As a result, U.S. consumer data is being transferred to growing numbers of service

providers located around the world making it more likely that the security and privacy of

the data will be compromised.22

C. Adoption of Business Process Management (BPM) Software is Also Fueling the

Growth in Business Process Outsourcing.

Business Process Management (BPM) refers to software used to design, execute,

monitor and optimize an organization’s business processes.23 BPM is rapidly becoming

the preferred architecture for building agile composite applications by linking together

services exposed through an organization’s SOA.24 According to Gartner, adoption of

BPM is on the rise and will continue to grow at a “high rate” through the end of the

decade.25 In particular, Gartner estimates that BPM new license revenue grew 17.3

percent from 2003 through 2004, amounting to $603.4 million in 2004. Moreover,

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revenue grew across all 10 of the geographic regions and subsegments showing that there

is a major, global market for this technology.26

BPM and SOA technologies complement each other well. The more business

components a company exposes through their SOA, the more services BPM has to

orchestrate within the enterprise processes it manages and automates. Using analytics

capabilities, BPM can also help benchmark and monitor the performance of the services

executing in the process to ensure they are aligned with performance goals.27 Therefore,

BPM can help reduce the risk organizations face from outsourcing services to third

parties by providing a standard mechanism for evaluating vendor performance and

service reliability. Moreover, BPM makes it much easier for organizations to swap

services in and out of their enterprise processes helping organizations gain agility and

adapt quickly to changing business needs. BPM reduces the cost for organizations to

experiment with different combinations of third party service providers enabling them to

identify the most efficient combination for their business. BPM can then encapsulate best

practices and ensure these processes execute consistently and optimally.28

D. The Growing Adoption of BPM, SOA and BPO Has Significantly Increased the

Threat to National Security Posed by Misuse of Consumers’ Personal Information.

Globalization has forced a “fundamental transformation from regional

economies to a single, integrated global economy.”29 Today’s firm may adopt a “follow-

the-sun” model to ease the burden of providing 24/7 customer support while outsourcing

product development services to Russia and payroll processing services to China. The

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network of global partners in most companies’ supply chain management processes are

growing. As part of this transformation, consumers have become more aware of privacy

and data security issues and their potential impact on economic markets and national

security.

SOA and BPM are breaking down organizational processes into individual tasks

and other manageable segments making it easier to swap new services in and out of end-

to-end business processes. To stay competitive, organizations are outsourcing many

services in their business processes in order to benefit from cheap foreign labor markets.

It is now much easier to collect, analyze and transmit consumer information

instantaneously to a wider network of affiliates, service providers and partners.

While this has increased the efficiency and agility of organizations, it has also

raised new data privacy and national security concerns. Foreign companies and workers

are gaining access to some of the most private information about American consumers.

One particular concern raised by privacy advocates has been the threat of misuse by “data

brokers,” or companies specializing in the collection and distribution of consumer data.

Data brokers must manage the fine line between using information that will benefit

consumers and the increased threat to national security that arises from using information

in a way that increases the likelihood of identify theft and other harms.

According to the Federal Trade Commission, the data broker industry is "large

and complex and includes companies of all sizes." Some of the data brokers collect

information from public and private sources and use it to provide their own personalized

services in the marketplace. Others simply resell this information to others, oftentimes

with few restrictions on the terms and conditions of these transactions, particularly in

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emerging foreign markets that represent the heart of the business process outsourcing

business. The FTC states that the "amount and scope" of the information these data

brokers collect differs significantly. While many of these uses benefit consumers, such

as "fraud prevention, debt collection, law enforcement, legal compliance, applicant

authentication, market research", this also makes these databases attractive targets for

1 Outsourcing, http://en.wikipedia.org/w/index.php?title=Outsourcing&oldid=61793844 (last visited March

31, 2007).

2 Business Process Outsourcing, http://en.wikipedia.org/w/index.php?

title=Business_process_outsourcing&oldid=16941873 (last visited March 31, 2007).

3 Romala Ravi, Brian Bingham & Lisa Rowan, Worldwide and U.S. Business Process Outsourcing (BPO)

2005-2009 Forecast: Market Opportunities by Horizontal Business Functions, Aug. 2005, at

http://www.idc.com/getdoc.jsp?containerId=33815 (last visited April 18, 2007).

4 Robert Brown, BPO Market to Grow to $110 Billion in North America by 2009, Gartner Group, August

12, 2005, at http://www.gartner.com/DisplayDocument?ref=g_search&id=484470 (last visited July 3,

2006).

5 Id.

6 Modes of outsourcing, http://www.tutorial-reports.com/book/print/604 (last visited April 18, 2007).

7 Lynn Ward, To Outsource or Not to Outsource?, E-CommerceTimes, June 17, 2003, at

http://www.ecommercetimes.com/perl/story/21700.html (last visited April 18, 2007).

8 Id.

9 Outsourcing, supra note 2.

10 Id.

11 Outsourcing, supra note 2.

12 Id.

13 Michael Barnes, Daniel Sholler & Paolo Malinverno, Benefits and Challenges of SOA in Business

Terms, Gartner Group, Sept. 6, 2005, at http://www.gartner.com/DisplayDocument?

ref=g_search&id=485146 (last visited April 18, 2007).

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identity thefts that may use this information to harm U.S. financial markets or otherwise

threaten national security.

While identity theft is a crime punishable by law in the U.S., a 2003 FTC survey

nevertheless estimated that 10 million consumers were victims of identity theft in the

twelve months leading up to the survey.30 The FTC estimated that this misuse of

14 Service Oriented Architecture, http://en.wikipedia.org/w/index.php?title=Service-

Oriented_Architecture&oldid=17012698 (last visited April 18, 2007).

15 Id.

16 David Chappell, Service-Oriented Architecture: What Next?, Apr. 4, 2004, at

http://web-services.gov/chappell4804.ppt (last visited April 18, 2007).

17 Id.

18 Bob Sutor, Open Standards vs. Open Source, at http://www.sutor.com/newsite/essays/e-OsVsOss.php

(last visited April 18, 2007).

19 Eric Pulier & Hugh Taylor, Security in a Loosely Coupled SOA Environment, June 13, 2006, at

http://www.aspnews.com/strategies/print.php/11296_3613041 (last visited April 18, 2007).

20 Id.

21 Id.

22 Pulier, supra note 23.

23 Business Process Management, http://en.wikipedia.org/w/index.php?

title=Business_Process_Management&oldid=61784948 (last visited April 18, 2007).

24 Id.

25 Jim Sinur, Janelle Hill & Michael Melenovsky, Market Share: Pure-Play BPM Software Worldwide

2004, Gartner Group, Nov. 22, 2005, at http://www.gartner.com/DisplayDocument?

ref=g_search&id=487272 (last visited April 18, 2007).

26 Id.

27 Id.

28 Id.

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consumers' personal information resulted in roughly $48 billion in losses and cost general

consumers an additional $5 billion in out-of-pocket losses. In addition to this significant

financial impact, increased prevalence of identity theft is making it easier and easier to

use consumers' personal information in ways that threaten national security.

By some estimates, in the last two years alone over 93 million Americans have

had their personal information “lost, stolen, or otherwise compromised.”31 Paul Kurtz,

the head of the Cyber Security Industry Alliance, made this assessment noting

additionally that information security breaches have eroded public confidence and

represents a “serious threat to economic growth.” He argues that it is “time for Congress

to act” by creating a comprehensive national law aimed at preventing further data

breaches.

While identity theft is a particularly common way consumers’ personal

information is misused it is by no means the only threat to privacy and national security.

In some instances, threatening to misuse consumers’ personal information has been an

effective bargaining chip for employees to extract personal benefits from their employers.

For example, in October of 2003 a highly publicized case of misuse of consumer’s

personal information involved a Pakistani transcriber doing basic clerical work for the

29 Alison Diana, Outsourcing by the Numbers, E-commerce Times, Nov. 12, 2003, at

http://www.ecommercetimes.com/story/32114.html (last visited April 18, 2007).

30 Statement of the Federal Trade Commission Before the Subcommittee on Financial Institutions and

Consumer Credit, Committee on Financial Services, U.S. House of Representatives, on Enhancing Data

Security: The Regulators’ Perspective (M ay 18, 2005), available at

http://www.ftc.gov/opa/2005/05/databrokertest.htm.

31 Paul Kurtz, Needed: A National Cyber Security Law, Business Week Online, October 16, 2006, at

http://www.businessweek.com/technology/content/oct2006/tc20061017_457028.htm.

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University of California, San Francisco. This transcriber threatened to post patients’

confidential information on the Internet unless she was paid more money.32 While her

motives appeared to have been entirely pecuniary in nature, the threat that consumers’

personal information will be used in terrorist activities or in other ways that threaten

national security are growing.

There have already been examples of employees at foreign outsourcing

companies using consumers’ personal data to steal from and defraud American

consumers. In April 2005, employees of an outsourcing company in Pune, India were

arrested for the theft of $300,000 from four Citibank customers.33 Citibank did not find

out about the problem until it was notified of discrepancies by its American customers.34

Reports have been made of Indian gangs offering to pay employees at outsourced call

centers for Western consumers’ credit card and bank account information.35 This number

may even understate the true risk given that successful hacking of outsourced company’s

databases is very difficult to measure.36 With over 150,000 American tax returns

prepared in India in 2004, many fear that exploitation of personal data and the threat to

American economic interests will only increase.37 A number of senators, including Liz

32 Lou Dobbs, Is Nothing Private Anymore?, U.S. News & World Rep., May 17, 2004, available at

http://www.usnews.com/usnews/opinion/articles/040517/17dobbs.htm (last visited April 18, 2007).

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Figueroa of California, have argued in favor of privacy legislation that would prevent

“outsourcing without any protections for privacy.”38

The privacy and intellectual property laws in common outsourcing destinations

like India, China and Russia, are not strict enough to protect consumers.39 For example,

the U.S. placed India and China on its “priority watch list” of countries that do not

provide adequate protection to intellectual property.40 Moreover, while there has been

“progress” in China’s efforts to enforce intellectual property rights, the State Department

still believes the country has “a long way to go” before those protections are considered

adequate.41 Additionally, since these processes can involve companies in many legal

33 John Ribeiro, Indian Call Center Workers Charged with Citibank Fraud, April 7, 2005, at

http://www.infoworld.com/article/05/04/07/HNcitibankfraud_1.html (last visited April 18, 2007).

34 Id.

35 Edmund Conway, Legal Challenge to Call Centres: Bank Union Claims Outsourcing to India Can

Contravene European Law, Daily Telegraph (London), Aug. 18, 2004, at 27.

36 Carrie Kirby, Hacking danger for outsourced records hard to gauge, San Francisco Chronicle, March 28,

2004, at http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2004/03/28/MNG573MCQG25.DTL.

37 Dobbs, supra note 29.

38 Id.

39 U.S. Department of State, China Has a High Rate of Intellectual Property Infringement, Apr. 29, 2005, at

http://usinfo.state.gov/usinfo/Archive/2005/Apr/29-580129.html (last visited March 31, 2007); Cassie

Duong, Intellectual Property Rights Protection Weak in China U.S. Says, June 7, 2006, at

http://usinfo.state.gov/xarchives/display.html?p=washfile-

english&y=2006&m=June&x=20060608164932cagnoud0.1814234 (last visited April 17, 2007).

40 Id.

41 Id.

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jurisdictions, there is question as to who may exercise authority when there are privacy

and information security issues.

III. SELF-REGULATION HAS NOT PROVIDED ADEQUATE PROTECTION

OF CONSUMERS’ PERSONAL INFORMATION.

The United States has traditionally promoted a combination of market-based self-

regulation and targeted, sectional legislation to attempt to prevent misuse of consumers’

personal data in ways that might weaken national security. This approach has failed to

provide adequate protection against misuse of consumer data by foreign companies.

A. Privacy Policies Are Insufficient to Protect Consumers’ From Misuse of their

Personal Data.

In 1998, the Online Privacy Alliance (OPA) was formed to encourage industry

self-regulation of privacy.42 The OPA created privacy guidelines that encouraged two

modes of self-regulation: 1) the adoption of privacy policies and 2) the creation of

certification groups.43 Privacy policies articulate the manner in which a company collects,

uses, and protects data, and the choices they offer consumers to exercise rights in how

their personal information is used.44 With privacy policies, consumers may determine

whether and to what extent they wish to make information available to companies.45

13

While American law does not require companies to post privacy policies, under Section 5

of the FTC Act the FTC has sued companies for failing to comply with their stated

privacy policies.46

Nevertheless, the adoption of privacy policies has not provided adequate

protection of consumers’ personal data. American law does not even require companies

to post privacy policies let alone ensure the policies are drafted in ways that actually

protect consumers’ data from misuse. Moreover, having individual privacy policies for

each website means users interested in protecting their information must read through the

statements of each website they visit in order to understand how their information is

being protected. Unfortunately, 70% of people in a recent study disagreed that “privacy

policies are easy to understand,”47 and few people make the effort to actually read them.48

In 2003, for instance, an Annenberg Public Policy Center poll claimed 57% of

respondents believed that if a company had a privacy policy, they would not share

information with other entities.49

It is an unreasonable burden to require consumers’ to read all of these statements

particularly since most of them state that they may be changed at any time. Moreover, it

appears that many consumers misinterpret the meaning of privacy statements and are

simply lulled into a false sense of confidence. For example, a survey conducted by the

42 Marcia Smith, Internet Privacy: Overview and Pending Legislation, CRS Report for Congress, July 6,

2004, at http://fpc.state.gov/documents/organization/35133.pdf (last visited April 17, 2007).

43 Id.

44 Esther Dyson, Privacy Protection: Time to Think and Act Locally and Globally, Apr. 1998, available at

http://www.firstmonday.org/issues/issue3_6/dyson/index.html (last visited April 17, 2007).

45 Id.

46 15 U.S.C. § 45(a).

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Annenberg Public Policy Center found that 75% of adults that use the Internet incorrectly

assumed that having a privacy policy meant that a website would not share their

information with other websites and companies.50 People assume that if a site has a link

to a “Privacy Policy,” their privacy will be protected.

Privacy policies therefore do not sufficiently protect consumers from the misuse

of their personal data by third party service providers.

B. Private Sector Certifications Fail to Adequately Protect Consumers’ Personal

Information.

The Better Business Bureau (BBB), TRUSTe, and WebTrust have created “seals”

certifying various levels of privacy protection for participating websites.51 The seal may

only be displayed if the company abides by specific privacy principles. While advocates

of self-regulation suggest that these seal programs preclude the need for federal

47 Joseph Turow, Lauren Feldman, and Kimberly Meltzer, Open to Exploitation: American Shoppers

Online and Offline, June 1, 2005, at

http://www.annenbergpublicpolicycenter.org/04_info_society/Turow_APPC_Report_WEB_FINAL.pdf

(last visited April 17, 2007).

48 Harris Interactive, Privacy Notices Research Final Results, Privacy Leadership Initiative, December

2001.

49 Joseph Turow, Americans and Online Privacy: The System is Broken, Annenberg Public Policy Center,

June 2003, available at

http://www.annenbergpublicpolicycenter.org/04_info_society/2003_online_privacy_version_09.pdf (last

visited April 17, 2007).

50 Turow, supra note 38;

51 Smith supra note 38.

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legislation, these seal programs have not proven effective at protecting consumers’

personal data. First, these seal programs do not carry the weight of law.52 Second, they

tend to only apply to data provided through an organization’s websites.53 Third,

TRUSTe and BBBOnline have been criticized for being mere corporate apologists rather

than defenders of privacy.54 Regarding TRUSTe, even people central to the

establishment of the seal program have been disappointed with it.55 Esther Dyson, who is

credited with playing a central role in the establishment of the seal program, has stated

that TRUSTe's board "ended up being a little too corporate, and didn't have any moral

courage."56

Therefore, while these programs combined with other forms of self-regulation

have provided some benefits, a full solution addressing the national security risks of

misuse of consumer data will not be complete without legislation that brings the full

weight of the law.

IV. THE UNITED STATES’ PATCHWORK OF FEDERAL PRIVACY LAW HAS

TOO MANY HOLES.

In addition to self-regulation, a variety of federal laws and regulations regarding

data privacy and information security have emerged. Unlike the broader European

52 Id.

53 Id.

54 Id.

55 Paul Boutin, Just How Trusty is Truste?, Wired News, Apr. 9, 2002, at

http://www.wired.com/news/exec/0,1370,51624,00.html (last visited April 17, 2007).

56 Id.

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approach to privacy law, U.S. privacy law has been more “sectional.”57 The United

States’ patchwork of privacy legislation regulates how certain types of entities may use

information. Restrictions on the use of consumers’ personal information have been

extended one vertical at a time and now include regulations for health care organizations,

financial institutions, and consumer reporting agencies. These laws help to strengthen

national security by reducing the likelihood that consumers’ personal information will be

misused in ways that harm the country. Unfortunately, in many situations current federal

privacy laws provides no protection against foreign companies that choose to misuse

consumers’ personal information in ways that harm national security. Moreover, this

patchwork approach is creating problems with harmonizing U.S. law with that of the rest

of the world.

A. Protecting Consumer Data in Financial Institutions: The Gramm-Leach-Bliley

Act.

In 1999, the Gramm-Leach-Bliley Financial Modernization Act (“GLBA”) was

enacted in order to protect the privacy of consumer information held by “financial

institutions.”58 The two primary components of the GLBA that govern the collection,

disclosure and protection of consumers’ nonpublic personal information are the Financial

Privacy Rule and the Safeguards Rule.

57 Fred H. Cate, The EU Data Protection Directive, Information Privacy, and the Public Interest, 80 IOWA

L. REV. 431, 438 (1995).

58 15 U.S.C. §§ 6801-09.

17

The Financial Privacy Rule gives consumers more control over how and when

financial institutions share their personal information.59 First, financial institutions are

prohibited from disclosing their customers' account numbers to non-affiliated companies

when it comes to telemarketing, direct mail marketing or other marketing through e-

mail.60 Second, when a financial institution passes consumer information to a service

provider that service provider may only use the information for limited purposes.61 If the

consumer had no right to opt-out, the service provider may not sell the information to

other organizations or use it for marketing.62 However, if the service provider receives

nonpublic personal information from a financial institution and the consumer does not

opt-out, the service provider may use the information for its own purposes or re-disclose

it to a third party.63

The Safeguards Rule requires financial institutions to implement reasonable

safeguards to prevent misuse of clients’ nonpublic personal information.64 This rule

requires the company to develop, monitor and test their program to ensure the security of

their client’s information. Moreover, this rule requires companies to select only

appropriate service providers and require them by contract to implement the safeguards.65

59 Id.

60 FTC, In Brief: The Financial Privacy Requirements of the Gramm-Leach-Bliley Act , available at

http://www.ftc.gov/bcp/conline/pubs/buspubs/glbshort.htm (last visited April 17, 2007).

61 Id.

62 Id.

63 Id.

64 15 U.S.C. §§ 6801-09.

65 Id.

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Therefore, while both the Financial Privacy Rule and the Safeguards Rule provide

some protection from misuse of consumer information by third party service providers,

the protection is limited to companies providing services to “financial institutions.”

Therefore, the GLBA does not protect against abuse by offshore outsourcing vendors that

receive consumer information from other types of organizations and institutions.

B. Protecting Consumer Medical Records: The Health Insurance Portability and

Accountability Act.

Enacted by Congress in 1996, the Health Insurance Portability and Accountability

Act (HIPAA) required the establishment of national standards for electronic healthcare

transactions.66 The HIPAA Privacy Rule, which took effect on April 14, 2003, applies to

health plans and any healthcare providers that transmit health information in electronic

form.67 In particular, the Privacy Rule protects all “individually identifiable health

information” held or transmitted by a “covered entity” or one of its business associates.68

In addition to requiring covered entities to take reasonable steps to protect the

confidentiality of communications with consumers of health care services, it also states

that a covered entity may not use or disclose protected health information unless the

individual authorizes the use in writing.69

66 HIPAA, http://en.wikipedia.org/w/index.php?title=HIPAA&oldid=31293402 (last visited April 17,

2007).

67 45 C.F.R. 164.501.

68 Id.

69 Id.

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Therefore, similar to the Gramm-Leach Bliley Act, HIPAA provides some

protection against misuse of personal information by third party service providers

receiving health information from health care providers. However, HIPAA only applies

to “covered entities” which consist of those who pay for health care “in the normal course

of business.”70 This definition would not provide protection from misuse by many

offshore outsourcing vendors that receive information from other types of companies and

institutions.

C. Section 5 of the Federal Trade Commission Act.

Under the Federal Trade Commission Act (“FTCA”), the FTC is empowered to

(a) prevent unfair methods of competition, including unfair or deceptive acts in

commerce; (b) seek monetary redress for injured consumers; (c) prescribe trade

regulation rules defining practices that are unfair or deceptive; (d) conduct investigations

relating to organizations engaged in commerce; and (e) make reports and legislative

recommendations to Congress.71

Section 5 of the Federal Trade Commission Act (“FTCA”) prohibits “deceptive”

business practices.72 Deceptive practices are material representations or omissions that are

likely to mislead consumers acting reasonably under the circumstances.73 The FTC stated

in 1998 that using personal information in violation of a posted privacy policy constitutes

70 42 U.S.C. 1395x(s).

71 15 U.S.C. §§ 41-58.

72 15 U.S.C. § 45(a).

73 Cliffdale Associates, Inc., 103 F.T.C. 110 (1984).

20

a “deceptive practice” and is actionable under the FTCA. Since 1998, the FTC has been

quite successful in bringing suits against companies that fail to comply with their stated

privacy policies.74

In addition to prohibiting deceptive practices, Section 5 also prohibits “unfair”

practices.75 Unfair practices are those that are likely to cause consumers substantial

injury that is neither reasonably avoidable by consumers nor offset by countervailing

benefits to consumers or competition.76 The FTC has used this authority to successfully

bring suits against companies whose practices, while not in direct violation of their stated

privacy policies, still threaten data security. For example, the FTC sued DSW for having

insufficient security measures to protect credit card and checking account information

and found that this constituted an “unfair” practice.77 Similarly, BJ’s settled with the

FTC after claims that its failure to encrypt information stored on its networks and its

failure to change default user id and passwords led to the breach of thousands of

consumers’ credit and debit cards numbers.78 Most recently, the FTC levied a

groundbreaking $15 million fine after finding that ChoicePoint’s lack of adequate

security measures resulted in a breach that led to over 800 cases of identity theft.79

While the FTCA is different from GLBA and HIPAA in that it is not limited to

industry-specific institutions, the FTC has never used its Section 5 authority to bring suit

against a company that provided consumers’ personal information to a foreign affiliate

that then abused or misused the information. Therefore, it is unlikely that Section 5 of

74 Petko Animal Supplies, Inc. (FTC Docket No. C-4133) (Mar. 4, 2005); Tower Records (FTC Docket No.

C-4110) (May 28, 2004); Microsoft Corp. (FTC Docket No. C-4069) (Dec. 20, 2002); Eli Lilly & Co. (FTC

Docket No. C-4047 (May 8, 2002). Documents related to these enforcement actions are available at

http://www.ftc.gov/privacy/privacyinitiatives/promises_enf.html (last visited April 18, 2007).

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the FTCA, in its current form, significantly reduces threats to national security that arise

from misuse of American consumers’ personal information by offshore service providers.

The recommendation that the FTC push Congress to grant them the authority to hold

offshore service providers legally liable for either direct misuse or personal information

or misuse that can be traced back to inadequate security measures is addressed in the next

section.

V. COMPREHENSIVE FEDERAL PRIVACY LEGISLATION IS NEEDED TO

REDUCE THE THREAT TO NATIONAL SECURITY FROM MISUSE OF

CONSUMERS’ PERSONAL DATA.

There is a growing risk to national security as businesses adopt emerging

technologies that increase America’s dependence on outsourced services. The solution is

comprehensive federal privacy legislation. The general public, as well as a growing

75 15 U.S.C. § 45(n).

76 Id.

77 Press Release, FTC, DSW Inc. Settles FTC Charges, Dec. 1, 2005, at

http://www.ftc.gov/opa/2005/12/dsw.htm (last visited April 17, 2007).

78 Press Release, FTC, BJ's Wholesale Club Settles FTC Charges, June 16, 2005, at

http://www.ftc.gov/opa/2005/06/bjswholesale.htm (last visited April 18, 2007).

79 Press Release, FTC, ChoicePoint Settles Data Security Breach Charges; to Pay $10 Million in Civil

Penalties, $5 Million for Consumer Redress, Jan. 26, 2006, at

http://www.ftc.gov/opa/2006/01/choicepoint.htm (last visited April 18, 2007).

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consortium of private sector companies, supports national privacy legislation. Moreover,

comprehensive federal legislation could be used to harmonize privacy requirements with

those of the European Union creating a compelling model for the rest of the world.

A. The General Public Supports National Privacy Legislation.

Opinion polls suggest that a majority of the American public would support

national privacy legislation. In a June 2001 Gallup poll two thirds of respondents were in

favor of new federal legislation that would protect online privacy.80 In April 2001, the

American Society of Newspaper Editors found that 51% of respondents were “very

concerned” and 30% were “somewhat concerned” that companies would violate their

personal privacy.81 In a 2002 Harris Poll, 63% of respondents considered current law

inadequate to protect their privacy and a majority of consumers stated they did not trust

businesses to handle their personal information properly.82

In particular, consumers have shown interest in legislation that would restrict a

company’s ability to provide their personal information to third parties. A 1991 Time-

CNN Poll stated that 93% of respondents believed companies should obtain permission

from the individual before selling personal information to a third party.83 A March 2000

Harris Poll found that 88% of users supported requiring a website to obtain consent

before sharing personal information with others.84 Recent surveys suggest that this trend

80 Id.

81 Id.

82 Id.

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for consumers to prefer legislation that would provide additional protection to their

personal information is growing.

Therefore, the general public appears to support broad privacy legislation that

would give them greater control over how companies use their personal data.

B. There is Growing Support in the Private Sector for Comprehensive Federal

Privacy Legislation.

Traditionally, the private sector has been opposed to broad federal privacy

legislation believing that regulation could inhibit growth and innovation. Nevertheless,

support for federal privacy legislation has been growing even in the private sector,

particularly among large, global firms. Recently, twelve companies formed the

Consumer Privacy Legislative Forum (“CPLF”), an advocacy group to lobby for greater

protection of private information.85 The CPLF includes both high tech companies such

as Microsoft, Google and eBay as well as companies that haven’t traditionally had a large

online presence such as Eastman Kodak Co., Eli Lilly and Co. and Procter & Gamble Co.

The broad range of industries represented by members of the CPLF suggest that new data

privacy issues are not unique to particular industries and that sectional, targeted federal

legislation is therefore inappropriate.

83 Electronic Privacy Information Center (EPIC), Public Opinion on Privacy, at

http://www.epic.org/privacy/survey (last visited April 17, 2007).

84 Id.

85 Consumer Privacy Legislative Forum, Statement of Support in Principle for Comprehensive Consumer

Privacy Legislation, June 20, 2006, at http://www.cdt.org/privacy/20060620cplstatement.pdf (last visited

April 17, 2007).

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The group believes the “time has come” for “comprehensive harmonized federal

privacy legislation” to create a “uniform but flexible legal framework” for protecting

consumers’ personal data.86 While the CPLF has not yet recommended specific language

for the statute, the law would likely require businesses to provide notice to consumers

when collecting or using personal information and provide individuals control over how

the information is used.87

The members of the CPLF have given a number of reasons for their position in

favor of federal regulation. According to Brad Smith, Microsoft’s General Counsel, the

complex patchwork of varying national and state laws around data and financial privacy

has been confusing and contradictory and has made it difficult for Microsoft to establish

consistency in their transactions with consumers.88 It is often unclear what standard will

be required in what area of the country when activity that is legal in one jurisdiction may

be illegal in another.89 Nicole Wong, Google’s associate general counsel, agrees that the

"uneven patchwork" of state privacy laws in the United States has made it difficult and

expensive for companies to comply.90 Moreover, many companies support national

legislation because they believe consumer fear of identity theft and other information

security abuses have chilled commerce.91

Therefore, the current approach towards privacy law in the United States has

become burdensome on the private sector and a growing number of companies believe

the time has come for comprehensive, federal legislation.

86 Id.

87 Id.

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C. Federal Privacy Legislation Will Harmonize U.S. Policy with International Laws.

As companies’ enterprise processes continue to invoke more and more services

from around the world to streamline operations and implement corporate strategy,

consumers’ personal data will pass between many countries with a variety of different

legal standards. Therefore, foreign privacy laws will apply to a growing number of

commercial transactions. It is important for any American legislation to consider these

foreign privacy laws in developing its own privacy legislation in order to prevent

conflicting obligations on global businesses.

A comprehensive, harmonized federal approach to American privacy legislation

would be more in line with most of the world than the existing patchwork approach. The

European Union Data Protection Directive, in effect since October 1998, created a set of

common rules for protecting personal data and preventing abuse in the EU.92 The

Directive requires companies to ensure that data is collected only for specific purposes, is

accurate and current, and is discarded when no longer needed.93 The Directive creates 88 Microsoft Addresses Need for Comprehensive Federal Data Privacy Legislation, November 3, 2005, at

http://www.microsoft.com/presspass/features/2005/nov05/11-03Privacy.mspx (last visited 3/12/2007).

89 Id.90 Kim Hart, Firms Seek Federal Privacy Rules, Washington Post, June 21, 2006, at

http://www.washingtonpost.com/wp-dyn/content/article/2006/06/20/AR2006062001367.html (last visited

March 12, 2007).

91 Press Release, Microsoft Corporation, Microsoft Advocates Comprehensive Federal Privacy Legislation,

Nov. 3, 2005, at http://www.microsoft.com/presspass/press/2005/nov05/11-03DataPrivacyPR.mspx (last

visited April 18, 2007).

92 Press Release, European Union, EU Directive on Personal Data Protection Enters Into Effect, Oct. 23,

1998.

93 Id.

26

certain obligations on the “processors” of personal data defining the circumstances by

which the data may be transferred to a third party.94 Article 25 prohibits the transfer of

personal information regarding EU citizens to countries that lack “adequate” privacy

laws.95 Since most countries do not have data privacy laws that satisfy the EU standards,

third party service providers are susceptible to legal challenges under the Directive.96

For example, the EU determined that US privacy laws were inadequate in January

1999. However, the U.S. Commerce Department negotiated a Safe Harbor agreement by

which U.S. companies can exempt themselves from the Directive. The Safe Harbor

requires these companies to voluntarily adhere to a set of privacy principles including

notice, choice, onward transfer, security, data integrity, and access. Other countries that

have not negotiated a Safe Harbor agreement with the EU are liable for security breaches

that result from their inadequate protections.

The EU Privacy Directive has dramatically influenced the adoption of privacy law

in non-EU countries and is arguably becoming the standard for the rest of the world.

Argentina, Australia, Canada, Hong Kong, Hungary, New Zealand and Switzerland have

all adopted data protection laws that are substantively very similar to the EU. In May

2003, Japan enacted a broad privacy bill applying to any business that uses personal

information databases.97 While the bill does not specifically declare its jurisdictional

reach, its language suggests it will apply to businesses outside of Japan.98 Additionally,

even officials in India have stated that they believe the EU Privacy Directive is

94 Id.

95 Jill Treanor, Union Claims Lloyds Outsourcing Breaches Data Laws, Guardian (London), Aug. 18, 2004,

at 26.

96 Id.

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comprehensive and that Indian legislation will be “more or less based on the EU

model.”99

Given that a large part of the world appears to be following the EU model by

adopting broad privacy legislation, American legislation must not fall behind or create

conflicting requirements on global businesses. By adopting comprehensive federal

legislation, the U.S. can harmonize its privacy requirements with those of the EU and

create a unified model for the rest of the world. This will reduce the number of

conflicting privacy regulations imposed on global businesses. Moreover, federal

legislation will create appropriate incentives for the increasing number of third party

service providers to put appropriate security measures in place to protect against misuse

of consumers’ personal information that could result in threats to national security.

D. The FTC Supports More Comprehensive Privacy Legislation.

In addition to the general public and a growing portion of the private sector, the

FTC is also in favor of broader federal privacy legislation. The FTC has recognized that

the protection of data privacy and security “is increasingly international in nature.”100

97 Amy Worlton, Asia Opts for EU-Style Privacy, Privacy in Focus, June 2003, at

http://www.wrf.com/publication_newsletters.cfm?

sp=title&year=2003&ID=10&publication_id=10468&keyword= (last visited April 18, 2007).

98 Amy Worlton, Asia Opts for EU-Style Privacy, Privacy in Focus, June 2003, at

http://www.wrf.com/publication_newsletters.cfm?

sp=title&year=2003&ID=10&publication_id=10468&keyword= (last visited May 3, 2007).

99 Privacy: India Drafting EU-Style Data Privacy Bill – Seeks to Attract Business from Europe, 104 Daily

Rep. for Executives A-18 (BNA) (May 30, 2003).

28

They have even noted that the globalization of the marketplace means “an increasing

amount of U.S. consumer information may be accessed illegally by third parties outside

the United States or located in offshore databases.”101

Given these structural changes, the FTC has recommended that Congress create a

broader, uniform privacy paradigm. For example, the FTC has recommended that

Congress extend the “Safeguards Rule” of the GLBA to companies that are not financial

institutions.102 Currently, the Safeguards Rule applies only to “customer information”

collected by “financial institutions” and therefore does not cover most data provided to

service providers.103 Therefore, while the GLBA restricts disclosure of a consumer’s

social security number and address by a financial institution, that same information is

often readily available for purchase on the Internet from a non-financial institution.

The FTC should also request that Congress extend its Section 5 authority to bring

suit against companies that provide consumers’ personal information to foreign affiliates

that do not have adequate security protections in place. This could simply be an

extension of the FTCA’s existing prohibition on “unfair” business practices. Providing

consumers’ personal information to third party providers that do not have adequate

security protections in place is “likely to cause consumers substantial injury that is

neither reasonably avoidable by consumers nor offset by countervailing benefits to

consumers or competition.” The original company collecting the consumer’s personal

100 Prepared Statement of the FTC, Data Breaches and Identity Theft, June 16, 2005, at

http://www.consumer.gov/idtheft/pdf/ftc_06.16.05.pdf (last visited April 16, 2007).

101 Id.

102 Id.

103 Id.

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information is the natural place for consumers to seek redress should there be any privacy

abuses that derive from that initial transaction. As such, the extension of the FTCA to

cover this situation is entirely logical.

VI. CONCLUSION

The adoption of emerging technologies such as Service Oriented Architecture

(SOA) and Business Process Management (BPM) is helping to fuel growth in business

process outsourcing. This is creating a structural change in organizations’ in which

business processes are increasingly composed of services provided by geographically

dispersed affiliate and partner organizations. Foreign companies and workers are gaining

access to private personal information about American consumers without adequate

protections in place to prevent misuse. This potential for misuse creates a rising threat to

national and economic security. Abuse of consumer information by foreign entities is on

the rise, decreasing consumer confidence and inhibiting economic growth. While privacy

policies and private sector certifications have afforded some protection, self-regulation

itself has not been adequate. Moreover, the United States patchwork of federal privacy

law applies only to specific areas like finance and healthcare leaving too many gaps to be

filled with confusing and oftentimes conflicting state laws.

The time has come for comprehensive privacy legislation to help address these

national security and data privacy issues. The general public and a growing number of

companies in the private sector have recognized this need. Comprehensive legislation

would help the U.S. harmonize its privacy policies with the international community

protecting global companies from the threat of conflicting legislation. Moreover, the

30

FTC has acknowledged that broader legislation extending the FTCA would enable it to

more effectively protect the privacy interests of consumers against misuse and abuse by

third party service providers.

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32