Thursday, January 15, 2009

State Attorneys General, Privacy Group Make Recommendations to Obama Transition Team

This posting was written by John W. Arden.

With the Presidential Inauguration only days away, organizations and public interest groups are taking their last opportunity to influence President Elect Barack Obama—and his transition team—prior to his taking office.

Earlier blog postings have described the American Antitrust Institute’s October 6, 2008 report to the next president (“The Next Antitrust Agenda: The American Antitrust Institute’s Transition Report on Competition Policy to the 44th President of the United States”) and the ABA Antitrust Section’s November 25, 2008 paper on the state of federal antitrust and consumer protection enforcement (“2008 Transition Report”).

Two more groups have issued recommendations for the new Administration—the National Association of Attorneys General (NAAG) and the Future of Privacy Forum (FPF).

Federal Preemption, Antitrust, Consumer Protection

NAAG’s “Interim Briefing Paper” to the President Elect’s Transition Team asks the incoming Administration and the new Congress to “resist federal preemption of state laws, particularly in the enforcement of state banking and mortgage foreclosure laws” and to increase cooperation between federal and state agencies.

In view of the failing economy, poor housing market, and soaring foreclosure rate, “it is critical that the state Attorneys General continue to be the ’56 cops on the beat’ and be given the necessary regulatory authority to impose appropriate standards on leading institutions,” according to the briefing paper.

The attorney general group also stated “addition priorities” in antitrust, consumer protection, and other legal areas.

In the antitrust arena, NAAG requested:

 Appointment of leadership for the Department of Justice Antitrust Division that will “prioritize cooperation with the Federal Trade Commission and the states”;

 Reinstate past practices that encourage cooperation and foster efficient enforcement of the antitrust laws, such as sharing investigatory materials;

 Resist attempts to preempt or weaken state antitrust law; and

 Ensure that antitrust law continues to serve the interests of consumers by (1) supporting federal legislation to allow federal antitrust recovery by indirect purchasers, effectively repealing Illinois Brick v. Illinois; (2) reinvigorating federal enforcement against vertical restraints that harm consumers and supporting legislative overrule of Leegin v. PSKS; and (3) reinvigorating support for health care enforcement by bringing actions when anticompetitive conduct seeks to prevent entry of rival generic drugs.

In the consumer protection area, NAAG recommended that the administration:

 Resist federal preemption of the traditional state role in consumer protection;

 Continue cooperation of federal and state agencies dealing with the mortgage foreclosure crisis;

 Support cooperation of federal and state agencies in the looming credit crisis; and

 Resist cutting federal grant funding for state consumer protection initiatives.

The briefing paper makes further recommendations regarding environmental, cybercrime, tobacco, and world trade, among other issues.

Privacy Policy

On January 13, the Future of Privacy Forum (FPF) issued seven recommendations for the Obama Administration:

 Appoint a Chief Privacy Officer to promote fair information practices in the public and private sectors,

 Ensure that interactive tools used by government provide users with enhanced transparency and controls,

 Establish a standard definition of "personal information,"

 Increase technology and research support for the Federal Trade Commission,

 Enhance criminal law enforcement support for the Federal Trade Commission,

 Provide national leadership to resolve the conflict between privacy and online safety for youth, and

 Encourage accountable business models.

"By appointing a [Chief Privacy Officer], President-Elect Obama will be taking an important and necessary step to ensure that the new Administration has the leadership in place to coordinate technology policies that will improve the quality of life for all Americans," said Christopher Wolf, co-chair of the FPF.

"We are in an era where the personal use of data brings opportunities for for advancements that can improve millions of lives, but the misuse of data can also negatively impact millions of citizens."

The FPF is a privacy think tank that maintains an Advisory Board comprised of leading figures from industry, academia, law and advocacy groups. Further information about the group appears here.

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