Commissioner Jule Brill is the keynote speaker at today’s IAPP Practical Privacy program on the Federal Trade Commission and consumer privacy in Washington, DC. Obviously, the just-released FTC Report is the hot topic.
Among the highlights of Commissioner Brill’s remarks:
- Privacy through the lens of Black Friday and Cyber Monday, the "high holy days of consumerism" — A number of consumers detailed their purchases online through "online exhibitionism," including even uploaded videos in which teenage girls showed off their purchases. So, with so many people chosing to make public what they have a right to keep private, why is the FTC looking for new and better ways to protect people’s privacy? It is simple, the Commission’s mandate is to preserve consumer control over private data. It is their choice to share, but "we make sure that consumers understand the implications of revealing information and are empowered to protect their information."
- Up to now, the FTC has been playing defense — enforcing privacy rights that cause tangible harm only after the fact. The notice and choice, and no harm/no foul paradigm does not do enough to protect consumers.
- The FTC Report reflects a new paradigm: (1) Privacy at every stage of development of products and services; (2) Simplification of consumer choice; (3) Increased transparency "but we are not throwing away the harm model, as our enforcement will show." Indeed, we are not throwing away anything, we are building on the current platform of protection.
- The most-talked about recommendation, the proposal of a Do Not Track mechanism: "I want to dispel concerns that have arisen." (1) The FTC is not proposing a list like "Do Not Call" but rather a "browser-based approach" that communicates their preferences to every web site visited. "I want to commend browser providers on developing these controls for consumers who show that the recommended approach is technologically-feasible." (2) Do Not Track will not result in consumers en masse opting out., as the Roundtables demonstrated. "I am reminded of ‘Miracle on 34th Street’ where Macy’s is featured as the consumer friendly store, providing choices to consumers. Mr. Macy in the film would have been eager to compete on privacy, and advertisers today should show consumers of the benefits of collecting and using their information for tailored advertising."
- Should we wait for industry to come up with a self-regulatory system or look to a new law enacted by Congtress? If industry does not adopt Do Not Track, then I support a law that gives the Commission APA rulemaking authority and civil penalties, along with the ability to respect self-regulatory regimes. I am discouraged by the immediate reaction of some in industry to even the concept of Do Not Track.
- The Commission is not recommending the possibility of legislation outside of the "Do Not Track" arena but Commissioner Brill thinks the Report could serve as a roadmap for more general legislative proposals.
- Consumer deserve greater access to information about them in databases.
- More cops on the beat are better. Even though browser controls for tracking that if ignored by marketers could violate existing laws enforced by others, Commissioner Brill believes that FTC authority to enforce is important.