United States: President, Congress Expedite Efforts To Establish A Federal Consumer Privacy Standard

Last Updated: September 20 2018
Article by Joel E. Roberson, Norma M. Krayem and Marissa C. Serafino
Joel E. Roberson is a Partner in Holland & Knight's Washington D.C. office.

Norma M. Krayem is a Policy Advisor in Holland & Knight's Washington D.C. office.

Marissa C. Serafino is a Public Affairs Advisor in Holland & Knight's Washington D.C. office.


  • The Trump Administration recently announced plans to establish U.S. consumer privacy standards in response to a series of high-profile privacy breaches.
  • Two federal agencies – National Institute of Standards and Technology (NIST) and National Telecommunications and Information Administration (NTIA) – are working collaboratively with the public and private sectors to develop voluntary frameworks for privacy.
  • All organizations that collect, store or sell consumer data are encouraged to engage with NIST, NTIA and Congress to provide input on the development of a U.S. privacy standard.

The Trump Administration, on Sept. 4, 2018, formally announced its plans to establish U.S. consumer privacy standards. Two federal agencies within the U.S. Department of Commerce – National Institute of Standards and Technology (NIST) and National Telecommunications and Information Administration (NTIA) – are working collaboratively with the public and private sectors to develop voluntary frameworks for privacy. The development of U.S. federal privacy standards follows global efforts to enforce privacy protections including the EU General Data Protection Regulation (GDPR), California Consumer Privacy Act (CCPA) and responses to a series of widely publicized cybersecurity attacks which resulted in hundreds of millions of U.S. consumers data being compromised. Congress is also considering a legislative response to establish statutory consumer privacy rights and remedies for violations. Initial industry response has been supportive of creating one federal consumer privacy standard, but there is angst over where that standard will draw the line. All organizations and companies that collect, store or sell consumer data should engage with NIST, NTIA and Congress to provide input on the development of a U.S. privacy standard.

Factors Prompting New Push for Privacy Laws and Regulations

The Trump Administration's decision to establish federal data privacy standards began several months ago following a series of high-profile cybersecurity breaches.

Stringent privacy laws have been adopted by numerous countries and some individual states in the U.S. In Europe, privacy is viewed as a human right which resulted in the EU enacting GDPR in 2016 a sweeping new privacy regulation that gives consumers the right to control their personal information and sets penalties for companies that violate a consumer's privacy. In June 2018, California enacted CCPA, the first privacy law of its kind in the U.S. that in some cases goes beyond GDPR. Further, all 50 states and the District of Columbia have enacted data breach notification laws. The Federal Trade Commission (FTC), as well as banking, financial and healthcare regulators, currently enforce alleged violations of consumer privacy and the resulting impact of a data breach.

These broad, and often conflicting, privacy and breach notification laws and regulations have created a patchwork of standards regulating the collection, storage and use of personal data, making compliance even more difficult for global organizations. The creation of voluntary privacy standards is intended to be a first step toward a more uniform approach to consumer privacy in the U.S.

NIST Privacy Framework

NIST has a long and well-respected history of working collaboratively with the public and private sectors to create technical standards. In 2013, NIST was tasked with the creation of the Cybersecurity Framework (Framework) as a result of White House Executive Order 13636. During the initial rounds of drafts, privacy language was included but was subsequently removed before the first draft of the Framework was issued in 2014. The Framework has been cited and analyzed in litigation, and is used as a basis for cybersecurity practices by numerous industries and companies.

NIST intends to use a similar approach to develop the Privacy Framework as a tool to better identify, assess, manage and communicate privacy risks. NIST will begin its public engagement by holding a series of public workshops to discuss ways that the Privacy Framework can meet organizations' needs to better protect personal information. The first workshop will be Oct. 16, 2018, from 2:30 to 5:30 p.m. in Austin, Texas. A recording of the workshop will be posted here shortly after the event. NIST has announced plans to integrate these discussions into an annotated outline of the Privacy Framework. Prior to the workshop, NIST will post pre-read materials on the Privacy Framework website. NIST also plans to hold a live webinar on the Framework in November 2018, though a specific date has not been released. Attending these workshops in person and/or providing well-tailored comments can benefit companies looking to develop or improve their data privacy practices.

NTIA Privacy Principles

Under the umbrella of the U.S. Department of Commerce's Internet Policy Task Force, NTIA, NIST and selected other agencies, including the International Trade Administration (ITA) and the U.S. Patent and Trademark Office (PTO), look at key policy issues around issues in the "internet economy." A 2017 NTIA survey indicated that nearly three-quarters of internet-using households had significant concerns about privacy and security risks, such as identity theft or loss of control over personal information. These efforts are all part of broader effort to establish Privacy Principles – a "domestic legal and policy approach for consumer privacy." The Principles will be published with a request for comment.

NTIA has been holding stakeholder meetings on a rolling bases to identify common ground and formulate core, high-level principles on data privacy. In July 2018, NTIA held a listing session with three dozen or so tech industry representatives and discussed "how to best protect personal privacy while also responding to consumer demand for innovative products and services." International Trade Administration and NIST officials also took part.

NTIA has also been involved in the development of privacy principles through its multistakeholder privacy best practice process on a variety of issues, including unmanned aircraft systems, facial recognition technology and mobile application transparency.

Possible Congressional Action on Federal Data Breach Law

As NIST and NTIA continue work on the creation of voluntary consumer privacy standards, Congress may act in the interim to establish mandatory data breach notification and consumer privacy requirements. Congress has held numerous hearings on cybersecurity risks and the need for increased consumer privacy protections over the course of 2017-2018, including with major technology companies that collect, store or resell consumer personal information. A host of bills have been introduced which would focus on varying requirements and enforcement authorities. One such bill introduced by Sens. Amy Klobuchar (D-Minn.) and John Kennedy (R-La.) on April 23, 2018, S. 2728, the "Social Media Privacy Protection and Consumer Rights Act of 2018," would establish new consumer privacy rights when they participate in an online platform that collects personal data during the online behavior of its users.

The Senate Commerce Committee has scheduled a hearing, Examining Safeguards for Consumer Data Privacy, that will include a number of the largest U.S. tech companies. The hearing on Sept. 26, 2018, will inform the development of federal online privacy legislation by a bipartisan group of four Senate Commerce Committee members – Sens. Jerry Moran (R-Kan.), Roger Wicker (R-Miss.), Richard Blumenthal (D-Conn.) and Brian Schatz (D-Hawaii) – who are reported to be negotiating a potential online privacy bill. Commerce Committee Chairman John Thune (R-S.D.) has also expressed an interest in developing his own online privacy proposal.

Industry Response

Over the course of the last year, a host of prominent organizations and trade associations have expressed support for Congress enacting a federal data breach pre-emption bill with others supporting specific privacy standards. On Sept. 6, 2018, the U.S. Chamber of Commerce released its own Privacy Principles and has expressed its commitment to "continue working with lawmakers and industry stakeholders with the goal of advancing privacy legislation." On Sept. 12, 2018, the Internet Association released a set of Privacy Principles and has committed "to working with Congress to develop a national approach to privacy that provides people with transparency and trust, while still allowing companies to innovate and develop products people love." On the same day, BSA | The Software Alliance released a Privacy Framework and urged Congress "to support a user-centric approach to privacy that will provide consumers with mechanisms to control their personal data."

Next Steps

The effort by NIST and NTIA to work collaboratively with the public and private sectors to create a commonly accepted consumer privacy standard-setting process as well as the efforts by Congress to take action are signals that there is momentum to create a national consumer privacy framework in the United States. As the legislative and executive branches develop privacy solutions, there are ample opportunities for organizations to engage in order to ensure these privacy standards are reflective of the nuances of varying organizations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions