Letters to the 108th Congress

February 24, 2003

The Honorable John B. Larson
United States House of Representatives
1005 Longworth House Office Building
Washington, DC 20515

Re: The Privacy Protection Clarification Act, H.R. 781

Dear Representative Larson:

Attached for your information is a copy of the amicus brief filed by the Connecticut Bar Association, as well as by eighteen other state and local bar associations, in the case of American Bar Association v. Federal Trade Commission currently before the U. S. District Court for the District of Columbia. The suit seeks to preserve the confidentiality of attorney-client relations from the privacy protection regime advanced in the Gramm-Leach-Bliley Act (Public Law 106-102) (the Act) for financial institutions.

The brief explains the ways in which the Act's Title V Subtitle A provisions, and the manner in which they have been interpreted by the implementing agencies, conflict with state-regulated privacy protection and the legal representation of clients of attorneys.

The Act requires financial institutions to provide to their customers a right to opt out of most commercial uses of their personally identifiable information and an annual notice of that right. It empowers federal agencies to define and enforce this protection regime. Despite the demonstrably greater level of protection provided by state ethics codes, and despite the conflict between Gramm-Leach-Bliley and these codes, the implementing agencies have construed the Act to extend to attorneys engaged in the practice of law.

This brief warns of the myriad dangers this poses to attorneys and to their efforts to ethically represent their clients. Particularly, it warns of the "difficulties one may expect to arise from an effort to superimpose a privacy regime upon lawyers that plainly does not take into account the unique nature of lawyer's ethical obligations to clients, courts and the bar..."

While the Association is pursuing this matter in the courts out of necessity, we would favor a legislative solution to this regulatory problem. Recently, Congresswomen Judy Biggert (R-IL) and Carolyn Maloney (D-NY) introduced the Privacy Protection Clarification Act, H.R. 781. The bill would create within the privacy protection regulations of Title V a safe harbor for attorneys in compliance with the applicable state ethics rules. The FTC's regulations already provide a similar exemption for universities complying with federal laws protecting the privacy of students.

I urge you, on behalf of our more than 400,000 members, to join as a cosponsor to the Biggert-Maloney Privacy Protection Clarification Act and to support its passage in the 108th Congress. For more information please contact Ellen McBarnette, Legislative Counsel in my office at (202) 662-1767 or mcbarnee@staff.abanet.org.

Sincerely,

Alfred P. Carlton, Jr.

A version of this letter was sent to the Congressional delegations from:

Arizona
Arkansas
California
Connecticut
Florida
Georgia
Illinois
Louisiana
Maryland
Oklahoma
Pennsylvania
South Carolina
Tennessee
Vermont
Virginia
West Virginia

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