• by Wendy Davis , Staff Writer @wendyndavis, June 8, 2010

NetChoice, an industry coalition that includes AOL, eBay, News Corp and Yahoo, has weighed in against the draft privacy bill floated last month by Rep. Rick Boucher.

The draft, circulated Boucher and Rep. Cliff Stearns, would require companies that track users across the Web to notify them and either obtain their consent -- though opt-out consent would be okay if the companies allowed consumers to view and access their profiles. The bill also would require opt-in consent before sites collect or disclose sensitive information, defined as medical records, race or ethnicity, religious beliefs, sexual orientation, financial records and precise geolocation information.

In comments sent to Boucher and Rep. Cliff Stearns, NetChoice argues that one potential unintended consequence is that the bill, as drafted, could interfere with the media's ability to report the news.

To illustrate, the group proposes a scenario where a reporter interviews participants at a Christian rally. "Per the discussion draft, a reporter could not even ask someone for their name without first providing a written privacy notice," NetChoice says. "Moreover, the reporter could not disclose anyone's name in a published story without first obtaining their express affirmative consent."

That conclusion stems from the draft bill's requirement that any companies who collect data provide written notice to consumers and obtain their express consent before obtaining sensitive information -- defined to include religious beliefs.

But another provision in the bill seems to weigh against that interpretation, the privacy group Center for Digital Democracy tells MediaPost. The CDD points out that the draft contains an exception for information collected for operational or transactional purposes -- such as gathering data for a news story. "This reporter is engaged in a news gathering transaction and operating as a reporter," the organization says.

Additionally, any attempt to limit the publishing of news so clearly violates the first amendment that no one empowered enforce the bill -- at present, the Federal Trade Commission or state attorneys general -- is likely to bring suit in the religious rally scenario.

Still, NetChoice's argument highlights just how complex Boucher's draft is. Lee Tien, an attorney with the digital rights group Electronic Frontier Foundation -- which argues that the proposed bill doesn't go far enough to protect consumers' privacy -- tells MediaPost that the bill "tries to cover so much territory that many people are just not sure what it means." He adds: "And when there are a lot of provisions, you can often posit meanings/readings that cumulatively lead to an unwelcome result."