16 October 1998
Source: http://www.usia.gov/current/news/latest/98101607.wlt.html?/products/washfile/newsitem.shtml

See related Aaron speech on encryption policy: http://jya.com/aaron101398.htm


USIS Washington File
_________________________________

16 October 1998

TRANSCRIPT: AARON CALLS FOR DATA PRIVACY NEGOTIATIONS WITH EUROPE

(Sees "significant overlap of principles" between US, EC) (1670)

Brussels -- Under Secretary of Commerce David Aaron told reporters
here October 15 that the United States and Europe "have gotten to a
significant, if not identical overlap of basic principles on what
needs to be done to protect privacy" of electronic data.

"I think we have reached the stage where we need to actually begin a
real negotiation, where we can begin trying to hammer out an agreement
that would on the one hand ensure European customers, European
individuals, that their data being transmitted across the Atlantic --
that they could have confidence that it would be protected adequately
(and) on the other hand, where our companies would be in a position
that, if they adopted certain practices and principles, that they
would feel that they were safe and doing what was required under the
[European] Data [Privacy] Directive and they would not be subject to
suits," Aaron said.

Following is transcript of U.S. Under Secretary of Commerce David
Aaron press briefing on data privacy discussions:

(Begin transcript)

UNDER SECRETARY OF COMMERCE DAVID AARON
Press Conference
Brussels
October 16, 1998

I can say this: we have been meeting with the Commission now for
roughly seven months at least and we probably have had four, five,
maybe six meetings at my level and innumerable sessions both in person
and by video and by e-mail at other levels, and I think it's fair to
say that these have been, first of all, consultations and not
negotiations. I think that is a very important point, because what we
have been trying to accomplish is to see if we had a meeting of the
minds as to how to increase and protect the privacy of our citizens,
and secondly on how we could ensure that data would continue to flow
across the Atlantic when the European Data Privacy Directive came into
effect. And those really have been our principal goals.

As we have discussed in effect the European approach, criteria, and so
forth and our approach, I think it's fair to say that we have come to
see that there is a significant overlap in our approaches even though
our procedures and our structures are very different.

As I have explained to our European friends, the concept of an overall
law that defined one's privacy, that established data commissioners
who would implement and otherwise define what is permissible and what
is not permissible in terms of the exchange of personal data, all of
that would be regarded in the United States as an invasion of privacy.

So we have a very different approach which is a mixed approach, that
involves law -- in the case of financial information, regulation -- as
it applies to financial information and information about children,
regulation -- as it applies to, again, financial information and
medical information and some other categories, and self-regulation.
All of this in the context in which self-regulation takes place in the
context of our fraud statutes and the responsibility of the Federal
Trade Commission to pursue misrepresentation and deceitful practices.

So we have a mixed situation which is more complicated. In the course
of these conversations, I think the privacy situation in the United
States has evolved dramatically. We now have at least three online
privacy services that are available to businesses, that establish
systems, principles and procedures to ensure people's privacy, that
respond to the basic elements of affected privacy which the Clinton
Administration promulgated in January, and which provide for
independent dispute resolution, and that sort of thing.

As we have drawn upon this evolving situation in the United States, we
tried to compare our basic elements with their views of what is
adequate privacy protection, and I think we have gotten a significant,
if not identical, overlap of basic principles on what needs to be done
to protect privacy.

Now, I think we have reached the stage where we need to actually begin
a real negotiation, where we can begin trying to hammer out an
agreement that would, on the one hand, ensure European customers,
European individuals -- that their data being transmitted across the
Atlantic -- that they could have confidence that it would be protected
adequately, on the other hand, where our companies would be in a
position that if they adopted certain practices and principles, that
they would feel that they were safe and doing what was required under
the Data Directive and they would not be subject to suits and so
forth.

That's sort of where we are. The Commission now is consulting with
member states; they are going to have some meetings that are scheduled
over the next few weeks, and we are hopeful that, based on those
consultations, they will be able to move to the stage of actual
negotiations and working out promptly the necessary agreements or
arrangements, however they might be expressed.

Question: Can you explain to us how exactly these sort of safe
harbors, or sort of voluntary agreements, would work ?

Under Secretary Aaron: I think the idea is this. If, for example, the
Commerce Department sets forth a set of principles that companies
could adhere to and procedures that companies could adhere to, and if
those principles and procedures were deemed to be adequate by the
European Union, then these companies would be in a "safe harbor." In
other words, they would have done things necessary to conform to the
European Union's view of what is adequate privacy protection. Now,
that wouldn't necessarily protect them from complaints, because that
could happen -- nobody can keep that from happening -- but the
practices themselves would not be the issue, the issue would be is the
company actually doing what it says it is doing.

Question: What's the significance of moving to a formal negotiation as
opposed to talks, I mean, will you now come forward then with formal
proposals, or how does it affect...?

Under Secretary Aaron: I think that's the point. The Commission has
not been negotiating. We have put forward some ideas and they have
said, "That's interesting," and now we need to get a real response
from them. Do they think this is the right way to go? Is safe harbor
really something that they think is -- can we get down to the real
process of working something out in concrete terms?

Question: Have you given them some proposals, some concrete proposals
?

Under Secretary Aaron: We have raised these ideas, but we haven't
given them concrete proposals in the negotiating sense because they
haven't reached that stage yet.

Question: But is this the next step, then, that the Commerce
Department will draw up these principles, or have you already done
that ?

Under Secretary Aaron: No, we would have to elaborate those, and we
would have to formally present them. I think the next step before that
would be for the Commission to get support from the member states in
moving forward in this direction, and that's what they are seeking
now. You know, these principles are not a mystery; they are contained
in the practices of these online privacy alliances. They are contained
in our basic elements; it's a matter of reducing that to real
language.

Question: Do you have a guarantee that the third parties, which
oversaw the safe harbors, were conforming to -- the safe harbors were
indeed doing what they were meant to be doing? Would the government
have to guarantee that or would it be banks or trusted organizations
who could do that job ?

Under Secretary Aaron: I think our view is that there are three ways
that that could be done. One is that the companies could get together
and create an independent body that would do that, and that's sort of
what these online privacy groups do.

The second is that some of our industries are very heavily regulated -
that's the banking sector, that's the insurance sector and so forth,
where a lot of personal information is transmitted. They are very
heavily regulated and in effect that regulation would serve that same
purpose.

The third, of course, is that the companies could offer -- it seems to
us, this is just our idea -- but the companies could offer to
cooperate with the European data protection authorities to give them
this assurance.

Question: The Commission seems to be saying that the most important
thing is that there be enforcement. They don't want some voluntary
codes that aren't enforced and they cite evidence that in the U.S.
their problem is with actually companies living up to the commitment
that they're making.

Under Secretary Aaron: I guess one of my responses to that is, that's
certainly true in Europe as well. We just came from Germany where the
federal data protection officer was talking just about things at the
federal level, which means the government's own actions. They have
3,000 complaints a year, so this problem is by no means limited to
U.S. companies. We believe that there should be some independent
process here, and that's a point that I think represents an evolution
in our thinking.

I also might add that, in addition to that, the FTC (Federal Trade
Commission) itself has made clear to the Commission that claims that
the companies might make as to their privacy practices, if they proved
to be untrue, would be -- in Europe, vis-a-vis Europeans -- would be
treated just as that same sort of fraudulent or deceitful practice
would be in the United States, and it would be subject to FTC
investigation and action.

Question: What's coming up on the 26th? Are we going to have any data
block?

Under Secretary Aaron: I would hope not. Certainly, we have had a very
cooperative, very constructive set of meetings here and I think we are
moving along in a genuine mutual problem solving mode here.

Thank you.

(End transcript)