December 3, 1999

VIA E-MAIL (Ecommerce@ita.doc.gov)

The Honorable David L. Aaron
Under Secretary of International Trade
U.S. Department of Commerce
14th Street & Constitution Avenue, NW
Room 3850
Washington, DC 20230

Dear Ambassador Aaron:

LEXIS-NEXIS is pleased to respond to the Department's request for comment concerning the November 15, 1999 Safe Harbor documents. We thank you and your able staff for your highly productive work in the course of lengthy negotiations with the European Commission ("E.C."), and commend you in particular for the significant progress that has been achieved in the November documents.

The Department has made extremely important progress with regard to both public record information and media archives. With regard to public records, we commend the Department in particular for two very significant improvements: first, exempting public records from onward transfer, integrity and enforcement regulation; and second, clarifying that the records continue to be subject to the safe harbor if combined with small amounts of non-public information record information for indexing or organizing purposes. The media archive exemption in FAQ 2 is of equal importance in protecting First Amendment liberties and avoiding the creation of "back-door" libel actions against media archives. It is essential that the final safe harbor documents retain all these features, and we urge the U.S. delegation to stand firm should the E.C. request any qualification to these important principles.

Our comments set out our understanding of several potential ambiguities in the Safe Harbor documents, on which we ask the Department to obtain clarification from the E.C. if its understanding differs from our own.

1. Public Records

As mentioned above, LEXIS-NEXIS is strongly supportive of the treatment of public records in FAQs 8 and 15.

First, we note that while the Safe Harbor documents do not specifically state that the Safe Harbor applies to public records created in the E.C., because the Safe Harbor Principles, like the E.C. Data Protection Directive itself, apply generically to "transfers of personal data" and the public records discussion is not limited to U.S.-origin public records, the Safe Harbor documents apply fully to European public records. Moreover, Article 26.1(f) of the Directive itself contains an exception for data transfers "made from a register which according to laws or regulations is intended to provide information to the public and which is open to consultation either by the public in general or by any person who can demonstrate legitimate interest . . . ." In light of the plain language of the Directive itself, E.C. public records are clearly subject to the Safe Harbor and FAQs.

Second, we assume that the definition of public records set forth in FAQ 8, Question 7 takes into account the derogation in Article 26.1(f) for records from public record registers "open to consultation either by the public in general or by any person who can demonstrate legitimate interest." Thus, both public records that are covered by Article 25 of the Data Protection Directive and public records that are subject to that derogation are exempt from the requirements of the Safe Harbor. A document is no less a public record if the government makes it available to segments of the public with some restrictions. For example, if government records concerning political contributions are not available to competing campaigns or competing political direct mail fundraisers, the record is no less a public record than if it were available for all uses. For purposes of the Directive, whether certain records are available to all, or some, members of the public is not a relevant distinction. See Article 26.1(f) (creating an exemption for both categories of records). Indeed, such records are clearly public records and should be treated no differently from other public records for purposes of the Safe Harbor.

To the extent that the Department's understanding of the meaning of the term "public record" in the Safe Harbor documents differs from our own, we urge that you obtain the following clarifications from the E.C. with regard to public records available to segments of the public:

1) that such records are public records within the meaning of the FAQs;

2) that the access principle should apply to such records only to the extent that individuals do not have access to their own records at the government source. For purposes of access, whether the record is available to the requesting data subject at the original source does bear materially on whether access is appropriate; and

3) that the onward transfer principle should apply only to the extent that the transferor transfers the records to an individual who does not fall within the approved list of recipients.

This balance would best reflect both the true nature of public records and the interests which the Directive and Safe Harbor seek to further.

2. Law Enforcement Exceptions

LEXIS-NEXIS interprets the references to law enforcement exceptions, such as that appearing in FAQ 8, Question 5.a., as encompassing both uses by governmental law enforcement organizations and uses by private sector units that employ services such as LEXIS-NEXIS' to carry out fraud prevention and detection and other crime prevention and detection efforts. As the Department is aware, these efforts are of critical importance in our instant credit economy to prevent credit fraud and identity theft before it occurs.

We believe that the language of the Safe Harbor document is fully consistent with our view--for example, Question 5.a. describes uses related to "enforcement of the law, including the prevention, investigation or detection of offences." However, if the Department's view differs, we urge that you obtain clarification in the final documents that important private sector fraud prevention efforts are treated identically to law enforcement efforts.

3. First Amendment Exception

LEXIS-NEXIS greatly appreciates the Department's efforts to ensure through FAQ 2 that ambiguities in Article 9 of the E.C. Directive in no way undermine First Amendment freedoms in the United States, or create the bizarre result of creating rights to sue or to obtain correction against post-publication archives, but not in relation to an original story.

LEXIS-NEXIS interprets FAQ 2's unqualified reference to "previously published material disseminated from media archives" as encompassing a broad range of archives making available media material from print, radio, and/or video media without regard to who maintains or uses the archive, the purpose for which it is used, or the date on which the material is retrieved. First Amendment protections, which are specifically referenced in the FAQ, are not limited to compilation or use of information by the press, and any suggestion that such archives may only be maintained by or used for journalistic purposes cannot be squared with the FAQ. We further interpret the FAQ as applying to all "journalistic material" and, consistent with the First Amendment, not permitting the government to ascribe lesser protection to material based upon an assessment of the journalistic quality of the material in question.

Again, if the Department's interpretation of this language differs in any manner from our own, we urge the Department to obtain clarification through modifying the phrase "media archives" to read "archives of media material" and inserting the phrase "or broadcast material, used for any purpose and" after the phrase "information found in previously published" in the last sentence of FAQ 2.

4. Interim Period

LEXIS-NEXIS urges the Department to ensure that the interim period during which the E.C. and Member States will avoid disrupting data flows to U.S. organizations, set forth in footnote 1 of the joint letter, be no shorter than the point at which both the Commission has approved a model contract period and all Member States have come into full compliance with the Directive. Any shorter period would fail to provide U.S. organizations with sufficient guidance as to their obligations under the Directive to decide with full information about whether to follow the Safe Harbor. It would also create the anomaly of U.S. organizations in some cases following more stringent privacy regulation than their European counterparts in order to avoid violating European law. Such an outcome, even if only temporary in nature, would make little sense and would place U.S. organizations at a competitive disadvantage.

5. Conclusion

LEXIS-NEXIS thanks the Department for its consideration of our views and its continued efforts on behalf of expanded international trade. If you have any questions regarding these comments, please do not hesitate to contact me (202/857-8200) or Steve Emmert of my office (202/857-8254).

Sincerely,

Gail Littlejohn
Senior Vice President
Corporate & Government Affairs