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FTC Report: A Roadmap for Future Success?

The report provides one of the best previews of where privacy regulation is going in the near future.
Chris Calabrese,
Legislative Counsel, ACLU Washington Legislative Office
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March 27, 2012

The FTC’s newly released privacy report is a roadmap to success on consumer privacy — now it’s up to Congress to follow the directions

The Federal Trade Commission (FTC) issued a helpful new privacy report yesterday. While no one has a crystal ball, the FTC provides one of the best previews of where privacy regulation is going in the near future. It follows on the heels of report released by the White House late last month. It’s a very solid report, the result of several years of fact-finding, hundreds of public comments, numerous roundtables and a preliminary staff report. What does it reveal about the current state of privacy and where the next year may take us?

The top level takeaway is relatively straightforward: According to the commission, we need comprehensive baseline privacy legislation to protect consumer information, especially online, which the FTC would regulate. Given this message, it’s hard for anyone to continue to make the case that U.S. consumers are adequately protected under existing law. If the same regulator who just spent a year trying to get a handle on the practices of Facebook and Google says the law isn’t able to adequately protect consumers, then it’s probably true.

So, how do we get better law? Well, according to the FTC at least one way is through the multistakeholder process the administration laid out in its report. That process would bring together industry, consumer groups, state regulators and others in an attempt to negotiate privacy codes of conduct that could bind companies and be enacted into law by Congress. In yesterday’s report, the FTC has committed to being involved.

The FTC’s involvement is crucial both as an independent fact-finder and a neutral source on existing practices. Embracing that role, the commission also announced it will lead public workshops in coming months on mobile devices and the ability of some large platforms — such as internet service providers, social networks, operating systems and browsers — to comprehensively track consumers. The report also describes its own policy framework for comprehensive legislation.

Development of a “Do Not Track” mechanism continues to be a focus as well, with the Chairman of the FTC, Jon Leibowitz, going so far as to predict “consumers will have an easy to use and effective Do Not Track option by the end of the year.” The ability for consumers to seek out controversial topics on the web without fear of constant corporate surveillance has long been an ACLU priority. If Chairman Leibowitz is right (and, more importantly, is willing to use the FTC bully pulpit to make it happen), that will be a significant win for privacy.

Finally, the commission fires a shot across the bow at data brokers, an industry whose business model is actually built on the violation of consumer privacy. These companies scour public government records, scrape social networking sites, and buy marketing data in order to create profiles on every American. They are the backbone of a flawed background check industry and also provide much of the information that is shared with those targeting online behavior and the government. The FTC calls for them to take new self-regulatory measures and would like to see special legislation to regulate them (as would the ACLU).

The FTC has crafted a roadmap to success on consumer privacy — now it’s up to Congress to follow the directions.

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