Citing two memos and one letter of clarification from the Office of Management and Budget, GAO Senior Attorney David Plocher said OMB had put federal agencies into a bind by simultaneously encouraging them to comply with the FTC's fair-information principles--which are not mandated by law--and requiring them to comply with the 1974 Privacy Act.
That act--which applies only to the federal government's collection of records about individuals--places specific obligations on agencies even though it allows numerous exceptions so long as an agency publishes its proposed rules in the Federal Register.
According to a study of federal privacy policies conducted by Linda Kontz, GAO's director of information management issues, seven agencies used cookies without disclosing their use--a clear violation of a June 2000 memorandum issued by former OMB Director Jacob Lew.
Koontz also cited a study released last week by Senate Governmental Affairs Committee Chairman Fred Thompson, R-Tenn., finding that 64 government sites used Web-tracking text files known as cookies even though they had not obtained permission from the head of the agency--also a violation of the June memorandum.
But Plocher said much of the blame stems from contradictions between the memo, a subsequent clarification issued in September 2000, and a June 1999 memo requiring agencies to post privacy policies informing Web site visitors about what information the agency collects, why it collects it and how it is used.
"OMB was trying to prod agencies to comply with the spirit [of privacy protection] but not trying to raise the bar with compliance of the [Privacy Act]," Plocher said. "It seemed to us that the OMB guidance is problematic."
"The effort to conform to broad privacy principles, while limiting requirements to those of the Privacy Act, introduces confusing terms and may send mixed messages about basic compliance requirements," he continued. "The attempt to narrowly address pressing problems, such as press accounts of cookie use, while avoiding overly prescriptive directives resulting in fragmented and unclear guidance for agencies."