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Two members of the House of Representatives, Mr. Rick Boucher (Democrat, Virginia) and Mr. Cliff Stearns (Republican, Florida) published in May a “discussion draft” of a bill on privacy. The goal of this draft is to raise the level of consumers’ protection, especially when it comes to behavioural advertising online.

This draft aims at increasing the confidence of users online by informing them on the way their data is used. When it comes to collecting data, the “discussion draft” foresees an individual’s express “opt-in” consent only for the most sensitive data, such as race/ethnicity, sexual orientation, precise geographic location information, medical records or financial accounts. The text also puts forward new transparency (understandable privacy policies) and security requirements.

This “discussion bill” was open to various stakeholders for comments. A draft bill should be drafted on the basis of the comments received. It seems already clear that the most critical point, during the discussion of the draft bill, will be the “opt-in” consent v. the “opt-out” consent. The representatives of civil society favour “opt-in” consent whereas industry representatives support “opt-out” consent.

In the absence of any federal horizontal privacy law, the introduction of such a draft bill in the House of Representatives would be a very important step forward. Nevertheless, the chances for this draft bill to make it through are very slim. In fact, business representatives do not support the bill and data from commercial websites are used by the government in order to fight terrorism in compliance with the 2001 Patriot Act. Since then, the US Congress has been reluctant to pass legislation that would limit the data that can be used by law enforcement authorities for investigation purposes.

Nevertheless, this « discussion draft » of a bill on privacy has already impacted on the advertising industry that announced that they will soon set up a stricter self-regulation system for websites that track consumers’ behaviour.

The draft bill should be presented before the House of Representatives in September and discussed during hearings organised before the committee on trade and energy.