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740 15th Street, NW
Washington, DC 20005-1022
(202) 662-1582
May 7, 2002
The Honorable
Robert Barr
Chairman
Subcommittee on Commercial and Administrative Law
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr.
Chairman:
On behalf of
the American Bar Association ("ABA") and its more than 400,000
members throughout the country, I write to express our concerns regarding
H.R. 4561, the "Federal Agency Protection of Privacy Act." I ask
that this letter and attachment be included in the record of the hearing
that was held on May 1, 2002, regarding this legislation.
H.R. 4561 would
require federal agencies to formally consider the impact that new
regulations will have on the privacy of individuals. Among other things,
the bill would: (1) require agencies to include an initial privacy impact
analysis with proposed regulations; (2) require agencies, after an
opportunity for public comment, to include a final privacy impact analysis
that describes the steps that were taken to minimize the significant
privacy impact of proposed regulations and that justifies the alternative
chosen by the agency with respect to privacy; (3) permit judicial review of
the adequacy of an agency’s final privacy impact analysis; and (4) require
agencies to periodically review rules that have either a significant
privacy impact on individuals or a privacy impact on a significant number
of individuals.
The ABA
certainly agrees that the American public should be protected from
unjustified or unintended invasions of privacy by the federal government
through legislative enactments, executive orders, regulatory action and
other appropriate measures. While we applaud the purpose of this bill, we are
writing to express our opposition to H.R. 4561 because we do not believe
that the need for rulemaking privacy impact analyses has been demonstrated
or that imposing such a requirement would, on balance, prove useful in
protecting privacy rights.
In February
1992, the ABA House of Delegates adopted a formal policy position
concerning rulemaking impact analyses, and attached for your consideration
is a copy of the ABA’s resolution and report on this issue. (The resolution
expresses the official policy of the Association; the accompanying report
is included for information purposes only.) In adopting this policy, the
ABA urged the President and Congress to: exercise restraint in requiring
rulemaking impact analyses; assess the usefulness of existing and planned
analyses; and ensure agencies' adherence to recommendations of the ABA and
the Administrative Conference of the United States regarding such impact
analyses requirements.
The ABA adopted
this policy in an effort to address the virtual explosion in analytical
requirements that have been imposed on the rulemaking process in recent
years and in the belief that too many such requirements detract from the
seriousness with which any
requirement is
taken. In our view, before establishing a new regulatory impact analysis,
the President and Congress should assess whether the proposed new
analytical requirement would benefit the public by improving the rulemaking
process.
The ABA does
not believe that a privacy impact analysis would meet this test for several
reasons. First, requiring an agency to undertake a privacy impact analysis
does nothing, in and of itself, to protect the public from unjustified or
unintended invasions of privacy by the federal government. Second, a
general requirement to conduct a privacy impact analysis would appear to
sweep within its ambit the overwhelming majority of rules that do not have
any impact on privacy. Examples of such rules include federal tire safety
standards, EPA rules establishing limits on toxic substances, FDA rules for
the approval of prescription drugs, and Commerce Department export control
regulations, to name just a few. Finally, and perhaps most important, there
does not appear to be a widespread or persistent pattern of agency
regulations unjustifiably or unintentionally invading privacy. Thus, a
requirement for a privacy impact analysis could result in make-work for
most agencies with little benefit to the rulemaking process or the public’s
privacy.
Federal
government action that inadvertently or unnecessarily invades privacy
should not be tolerated. However, the ABA is not convinced that sweeping
legislation like H.R. 4561 is the appropriate vehicle for addressing this
issue. We therefore urge you to move cautiously and engage in additional
evaluation and deliberation before taking any further action on this
legislation. We also stand ready to work with you to craft legislation
directed at specific, identified problems of the federal government
inappropriately violating the privacy of any individual.
Thank you for
considering the views of the ABA on these important matters. If you would
like more information regarding the ABA’s positions on these issues, please
contact our legislative counsel for privacy issues, Ellen C. McBarnette, at
202/662-1767 or our legislative counsel for administrative law issues,
Larson Frisby, at 202/662-1098.
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Sincerely,
Robert D. Evans
attachment
cc: All members of the House Judiciary
Committee
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