WASHINGTON -- Privacy legislation may not be going public anytime soon.
Conventional wisdom in the nation's capital says that the prospect of Congress enacting Internet privacy laws is extraordinarily likely, and perhaps even inevitable.
"I believe that significant privacy legislation is going to be sent to the president this year, and the debate is not, 'Is it going to be sent to the president?' The debate is, 'What is it going to look like?'" Sen. Ron Wyden (D-Ore.) said in January. Rep. Joe Barton (R-Texas) put it more bluntly: "Privacy legislation is inevitable."
But a combination of factors -- including widespread disagreement on Capitol Hill about what form legislation should take, increasingly vocal opposition from business groups, and concern that intervention might harm the economy -- could derail the best efforts of privacy advocates.
GOP leaders are taking a cautious approach. One hint about how Congress will proceed comes from a hearing on Thursday before the House telecommunications subcommittee.
Six experts, all lawyers, were asked to speak at the event, titled "Privacy in the Commercial World." Four witnesses opposed new regulations or advised extreme caution in the area, and only two witnesses argued for action by Congress.
Eugene Volokh, a professor of law at UCLA who argues that rules on information-sharing violate First Amendment rights, said that the "risks of watering down important free speech protections are troubling enough that I must reluctantly oppose such information privacy rules."
Solveig Singleton of the free-market Competitive Enterprise Institute said that "laws that view the spread of information itself as the enemy will not target any real problems, and will do considerable harm."
The subcommittee's chairman, Rep. Cliff Stearns (R-Fla.), struck a don't-rush-into-this tone. "We must educate ourselves on the intricacies of privacy and frame the issues to be addressed before we can draft legislation," Stearns said.
Marc Rotenberg, director of the Electronic Privacy Information Center and a witness, said afterward that he doesn't believe observers should read too much into the hearing lineup.
"I think the likelihood of privacy legislation in this Congress is high," said Rotenberg, an advocate for new data collection and use laws. "I don't think anything is inevitable (but) I think history is on our side. History is on the side of privacy legislation."
"I think it will happen because industry is concerned by what states will do," Rotenberg said. "They want a bill to preempt state law."
Not all of them do.
Harris Miller, president of the Information Technology Association of America, says: "For basic business-to-consumer transactions privacy legislation is not necessary."
ITAA says it has 26,000 direct and indirect members including AOL-Time Warner, AT&T, Intel, Merrill Lynch, Microsoft, and Oracle.
Miller says he's confident that privacy legislation won't be seen this year. "We do not believe that privacy legislation is necessary or appropriate, or that it will pass this year," he says. "When Congress looks at the issue and discovers the complexity, we don't think they'll pass anything."
Rick Lane, director of e-commerce at the U.S. Chamber of Commerce said his organization is currently trying to educate Congress about the perils of overly broad data-collection regulations and how technology can solve privacy problems.
"To pass privacy legislation just because it will boost consumer confidence but undermines the economy isn't a good idea," Lane says. He doesn't rule out a "narrowly targeted" bill that addresses a provable harm, but says the business community won't "ever support" some of the more extreme proposals.
In the Senate, John McCain (R-Ariz.), chairman of the Senate commerce committee and a proponent of data collection legislation in the last Congress, has yet to schedule hearings on the topic. Spokeswoman Pia Pialorsi said McCain plans to convene one early this spring "and then introduce a bill."
Pialorsi also said that McCain's legislation will likely be based on the privacy bill he co-sponsored with Sen. John Kerry (D-Mass.) in the last Congress -- a measure viewed as largely pro-business. It required a privacy notice on consumer websites, but consumers would have to choose to opt-out of data collection.
Jim Harper, editor of the free-market website Privacilla.org and a former Republican Hill aide, predicts that an opt-out approach stands the best chance of success in this Congress.
"The stuff that's in contention is stuff like the McCain bill from last year," Harper said. But that doesn't mean he thinks privacy legislation is inevitable: "It's a serious bill, but I actually still don't think it will pass."
Like many other libertarian and free-market types, Harper opposes privacy regulations for the Internet on the theory that the market will correct itself. "It's a problem that will resolve itself in time relatively quickly," he says.
His views have support among some Republican leaders -- and, of course, it's always easier to block legislation than to win its passage.
"Our office in particular has a problem with the amount of information the government collects on private citizens," said Richard Diamond, spokesman for House Majority Leader Rep. Dick Armey. "We think the government is actually a bigger threat to privacy than someone selling books online with a bad privacy policy."
"Is there going to be legislation?" Diamond says. "I don't know. The first question we need to address is do we even need legislation.... Do you really want the government, which doesn't have its own act together, dictating privacy standards?"
A Wired News investigation last year found that dozens of federal agencies were ignoring stern White House instructions not to use cookies on government websites.
Ari Schwartz, policy analyst for the Center for Democracy and Technology and supporter of data collection legislation, is more upbeat about its chances. He predicts that after debates over the budget and campaign finance reform, privacy is next -- but adds "that's not to say it's definitely going to happen."
One more wildcard is where the Bush administration stands.
During the campaign, some Bush aides talked about an opt-in approach toward privacy legislation directed at websites, and a document circulated in conservative circles in January echoed that approach. But the White House has been quiet on the topic since.
