Options for Promoting Privacy on the National Information Infrastructure. 3. Creation of a Non-Governmental or Advisory Entity


As discussed above, a privacy entity could perform an advisory function in the public sector, the private sector, or both. One advantage of advisory entities is that they may utilize private sector expertise that would not otherwise be available to the government. Several examples demonstrate the broad and varied role of federal advisory bodies today.

The U.S. Advisory Commission on Intergovernmental Relations (ACIR) is an example of a long-lived advisory commission. ACIR, an independent, bipartisan intergovernmental agency, was established by Congress in 1959 to identify emerging issues, trends and turning points in intergovernmental relationships, to stimulate discussion about these issues, and to educate leaders and the public for the purpose of promoting stronger intergovernmental communication, cooperation and coordination. To this end, in accordance with its authorizing legislation, ACIR convened government officials and private citizens, monitored events in the federal system, provided technical assistance to the executive and legislative branches, and recommended changes in law and regulation to improve intergovernmental relations. ACIR's funding came from Congressional appropriations, state government contributions, the sale of Commission reports, and intergovernmental contracts.

Alternatively, temporary advisory committees may be established under the Federal Advisory Committee Act.268 FACA bodies provide advice and recommendations to the Executive branch with respect to specific issues of importance.269

The National Security Telecommunications Advisory Committee (NSTAC) was created in 1982 to advise the President on national security/emergency preparedness telecommunications (NS/EP) matters. Its membership consists of 30 appointed industry leaders representing major carriers, information service providers, manufacturers, electronics firm, and aerospace firms. The NSTAC's principal working body, the Industry Executive Committee, supervises subgroups that address specific issues in more detail. The NSTAC works in conjunction with the National Communications System (NCS). The NCS is comprised of 23 federal departments and agencies and is the government equivalent of the NSTAC. The NCS has a small permanent staff that functions as the Executive Secretariat for the NSTAC. The two organizations can coordinate their activities to ensure both public and private sector coverage.

Advisory bodies are generally quite independent, which gives them greater credibility with the public. For example, the Committee members often represented very disparate but strongly held views. Based on their composition and expertise, such committees' spheres of influence can extend to both the public and private sectors. This type of entity can be quite effective in facilitating dialog among interested parties. For example, NSTAC has been extremely effective addressing telecommunications security issues by opening lines of communication between government and industry.270 Also, costs are generally quite limited.

Both the public and private sectors may view an advisory board as less intrusive, and therefore more acceptable, than a regulatory agency. Additionally, if the board is structured to offer advice across a broad spectrum in both the public and private sectors, it is less likely to be viewed as a spokesperson for any particular interest group. For example, an advisory commission might be created to assist both government agencies and the private sector to comply with the Privacy Principles as an aid to ensuring even implementation of a uniform set of information use standards and thereby increasing public trust in the NII.

On the downside, an advisory body generally works well because it focuses on a narrow range of issues (for example, in the case of NSTAC--national security/emergency preparedness telecommunications). Privacy issues, as we have seen, are potentially quite far reaching. Advisory committees typically can recommend certain action, but they do not create rights, benefits or responsibilities that are enforceable at law or equity.

Advisory commissions may also be criticized as inefficient or ineffective by those who want to see quick action on privacy issues. As a practical matter, an advisory commission may not be able to bring about specific desired changes as rapidly as a regulatory agency might, since it would have to build a consensus and influence change by persuasion over time rather than by mandate. Others, however, may believe that having privacy experts lending advice would significantly balance and promote important interests without burdening society with the costs and intrusiveness generally associated with a regulatory function.

268. 5 U.S.C. App.2

269. The Advisory Commission on Gulf War Veterans Illneyuzshgass is one such example.

270. NSTAC and NCS publish regular reports, recommend legislation, collect information about network incidents, and coordinate joint government-industry responses to telecommunications issues.