Subpanel approves bill requiring privacy review for federal rules

Federal agencies would be required to assess the privacy implications of any new or proposed rule under legislation approved Wednesday by a House subcommittee, but the measure appears to have little chance of becoming law despite the recent and ongoing furor over reports that certain phone companies have been giving calling data to the federal government.

The Federal Agency Protection of Privacy Act (H.R. 2840) was approved by voice vote by the House Judiciary Commercial and Administrative Law Subcommittee. There were no amendments, although ranking member Melvin Watt, D-N.C., said he might offer an amendment later.

The bill would require federal agencies to prepare an assessment on a proposed rule's impact on individual privacy and, when promulgating the final rule, to prepare a final privacy impact assessment. It also would allow the head of agency to waive or delay completion of those analyses for national security reasons, to protect classified, commercial or disclosure that may adversely affect a law enforcement effort, according to the bill language. It also requires the agency to periodically review the rule for privacy impact and carry out subsequent reviews every 10 years.

Watt cited testimony by George Mason University Law School Professor Sally Katzen, who suggested that agencies be required to give a copy of their privacy impact assessment to the director of the Office of Management and Budget. Without oversight at that level, she said, agencies were likely to exempt themselves from the assessment process by citing some of the bill's many grounds for doing so.

Katzen also recommended that Congress separately force OMB to appoint someone as chief privacy counselor, and she excoriated the administration for failing to name a replacement for Nuala O'Connor Kelly, who headed privacy efforts at the Department of Homeland Security but resigned last fall. It is hard enough for a "tenured" official to champion such concerns, she said; for someone to do so in an acting capacity is that much harder.

Rep. William Delahunt, D-Mass., cited the phone company controversy in supporting the bill. "It's time," he said, "particularly given the context of recent revelations." The bill is far from new, however, having first been introduced by panel member Steve Chabot, R-Ohio, in the 106th Congress.

No action was taken, but the House passed a similar measure during the 107th Congress. A companion measure was introduced by former Sen. Max Cleland, D-Ga., but it got only three cosponsors and never made it out of the Governmental Affairs Committee. Last session, the measure was approved by the House Judiciary Committee and included in the intelligence reform bill, but the privacy piece was removed before passage.

House Judiciary panel members' frustration at having to try again was evident today. "At some point, we are going to have to do something on this issue-more than mark up this bill in the subcommittee," Watt said. "This may be just another show."

Committee Chairman Chris Cannon, R-Utah, placed the blame on the Senate, calling it a "complicated body," and vowed to pass the bill "again and again" until it is enacted. Cannon also said he was "thrilled" to work with Watt in trying to incorporate some of Katzen's suggestions as the bill moves forward.

No timetable has been set for full committee consideration, according to a committee aide.