Antitrust Law Daily Wrap Up, PRIVACY NEWS: FTC Commissioner Brill discusses consumer trust in big data era, (Oct 7, 2014)

By Greg Hammond, J.D.

In a speech delivered today to the U.S. Chamber of Commerce Foundation Conference in Washington, D.C., FTC Commissioner Julie Brill discussed the importance of consumer trust, as well as steps that corporations, data brokers, and law makers can take to maintain and strengthen that trust.

“There is no doubt that there are great benefits to a society relying on – and an economy driven by – big data,” Commissioner Brill said in her prepared remarks (“The Trees and the Forest: Protecting Consumer Trust in the Big Data Era”). “The success of this sort of economy depends on keeping global data flows open and training a workforce that can create useful innovations out of raw data. And even more importantly, the success of this sort of economy relies on protecting consumers from the risks to their privacy that big data can pose.”

According to Brill, there are three main challenges to consumer trust in our data driven economy: (1) privacy and data security; (2) the collection and use of sensitive personal information; and (3) discrimination and unethical data practices. “[D]ata security is essential to privacy, and unexpected revelations about our health, our families, our location, or activities in our homes can cause substantial harm to consumers,” she noted. Further, although big data tools have the potential to promote economic inclusion, there is also a clear potential for the use of personal information to be harmful and discriminatory, which would destroy consumer trust.

Consequently, Commissioner Brill set forth a number of approaches for strengthening consumer trust. First, Brill commented that improving security of data that is personally identifiable or linkable to individuals is a must. Specifically, companies should (1) review the data that they have and what data they actually need to serve their customers, and (2) deidentify the unnecessary data, and promise to not reidentify it.

Second, Brill promoted ways for individuals to control the privacy of their own information. “Through my ‘Reclaim Your Name’ initiative, I have called on data brokers to empower consumers, through easy-to-use portals, to find out how brokers are collecting and using their data; give them access to information that data brokers have amassed about them; allow them to opt-out or correct information used for marketing purposes; and provide them the opportunity to correct errors in information used for substantive decisions,” she said.

Lastly, the Commissioner suggested that companies ensure that their collection and use practices are consistent with trusted relationships, in order to ensure the ethical treatment of consumers. Brill would like to see the United States strengthen its laws through baseline privacy legislation, data security legislation, and stronger requirements for data brokers. However, companies can also take meaningful actions, said Commissioner Brill, including: (1) using more resources on designing intuitive portals, dashboards, and better interfaces for consumers to use, in order to control their privacy and security; (2) making ethics reviews part of companies’ big data analytics business practices, including “consumer subject review boards” to identify and reduce consumer risks; and (3) asking whether the company’s analysis of consumer data is taking it into questionable territory.

“[C]ompanies need to step back and take a broader view that includes not only their legal obligations but also a more nuanced picture of how consumers expect their data to be treated,” stated Brill. “Trust is like a good reputation. It may take a long time to build, but, as the great American philosopher Will Rogers noted, you can lose it in a minute.”

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