Ambassador David L. Aaron
Electronic Commerce Task Force
U.S. Department of Commerce
Room 2009
14th and Constitution Ave., N.W.
Washington, D.C. 20230
Re: Comments on Proposed Safe Harbor Privacy Principles and Accompanying FAQs
Dear Ambassador Aaron:
The following comments are in response to the Department of Commerce's request for feedback on the Safe Harbor Privacy Principles and the accompanying Frequently Asked Questions (FAQs) which were developed by the Department to address issues raised by the European Union's Directive on Data Protection.
The news organizations listed below would like to express their appreciation for the inclusion of the "Journalistic Exceptions" FAQ which appropriately emphasizes the importance of First Amendment protections embodied in the U.S. Constitution and clarifies that the Safe Harbor Principles cannot apply to information gathered, maintained, or disseminated for journalistic purposes.
We are concerned that the European Commission believes that some of the Principles, in particular data security and integrity, could apply to personal information gathered for journalistic endeavors. We strongly believe that the Data Protection Directive and the Principles, if applied to information gathered, maintained, or disseminated for journalistic purposes, pose serious threats both to the dissemination of news and the editorial process. Further, it is unclear how the Commission envisions applying some, but not all, of the Principles to personal information gathered for journalistic purposes. Applying these two principles would give too much deference to a European approach of balancing privacy interests against a free press, and would eviscerate the First Amendment protections that exist in the United States. Therefore, we urge the Department to keep the Journalistic Exceptions FAQ as it is presently drafted.
Applying the Data Integrity Principle to information gathered for journalistic purposes wreaks havoc on the process of investigative reporting. If a reporter collects information for one purpose but finds that it sheds light on another news item, should that journalist be precluded from using the information? We adamantly believe the answer must be no. Yet this principle states that an organization "…may only process personal information relevant to the purposes for which it has been gathered."
Further, the Data Integrity Principle stresses that an organization "should take reasonable steps to ensure that data is accurate, complete and current." Imposing an accuracy standard on news organizations would amount to the creation of another right of action, in addition to current libel law, which already sufficiently addresses accuracy in news reporting. Imposing a second requirement through the Safe Harbor would raise serious First Amendment concerns.
A "completeness" requirement strikes at the heart of editorial decision making and would severely compromise First Amendment freedoms. A core function of editing is shortening stories to fit space constraints. Because "completeness" is a highly subjective concept, this requirement would mire the press in numerous disputes. It also would make creating and disseminating excerpts and synopses a perilous endeavor.
In addition, news stories can, and often do, evolve over time, where the first article reveals information that in turn leads to the exposure of additional information. Ensuring that data is current would unduly restrict news organizations from publishing newsworthy articles in a timely fashion, or from maintaining archives, which perform an important journalistic function precisely because they permit review of articles that are no longer current.
The right of a free press would be turned on its head if the Data Security Principle were applied to information gathered and disseminated for journalistic purposes. This principle inevitably leads to governmental oversight on how information is protected, which in turn requires knowing what personal information had been collected in order to ascertain whether the security procedures are "reasonable." Journalists working within news organizations are concerned about protecting personal information not only out of respect for individual privacy, but also from fear of intrusion by competitors, governments and others who seek to influence improperly the process of gathering and presenting the news.
A news organization's value to a community is based on the accuracy, relevance and truthfulness of the information it provides to its readers or viewers. When that is questioned, U.S. law allows individuals to file civil actions for invasion of privacy, if they believe that news organizations have published intimate information that is not newsworthy, or for libel, if they believe that news organizations have published false and defamatory statements. This system strikes the appropriate balance between privacy and the free flow of information fostered by the First Amendment.
On a related issue, with respect to the FAQ that addresses access to archives, we recommend that instead of pointing to newspaper archives by way of example, the appropriate reference would be to "journalistic archives." We believe incorporating this suggested change will fully demonstrate that the access principle does not apply to any news media archives, regardless of whether they are newspapers, magazines or any other periodical publications.
In conclusion, we urge the Department to resist the European Commission's attempt to cherry-pick which Principles apply to material gathered, maintained, and disseminated for journalistic purposes and preserve the FAQ as it is presently drafted. Such a selective approach would undermine the Safe Harbor Privacy Principles as a whole and would be fatally inconsistent with the protections afforded under our Constitution.
We appreciate your consideration of our comments.
Sincerely,
James R. Cregan, Esq.
Executive Vice President
Rita Cohen
Senior Vice President
MAGAZINE PUBLISHERS OF AMERICA
1211 Connecticut Ave., NW, Suite 610
Washington, DC 20036
Phone 202-296-7277
Fax 202-296-0343
mpadceco@erols.com
David S. J. Brown, Esq.
SVP/Public Policy & General Counsel
E. Molly Leahy, Esq.
Legislative Counsel
NEWSPAPER ASSOCIATION OF AMERICA
529 14th Street, N.W. Suite 440
Washington, DC 20045
Phone 202-638-4786
Fax 202-783-4699
leahm@naa.org
Jane E. Kirtley, Esq.
Executive Director
THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
1815 N. Fort Myer Drive, Suite 900
Arlington, VA 22209
Phone 703- 807-2100
Fax 703-807-2109
jkirtley@rcfp.org