Antitrust Law Daily Wrap Up, PRIVACY NEWS: FTC Commissioner Brill discusses European, U.S. approaches to privacy, (Sep 11, 2014)

By Greg Hammond, J.D.

FTC Commissioner Julie Brill provided the keynote address at the Mentor Group Vienna Forum today, discussing efforts to reconcile big data and privacy, particularly in an approaching age where “all that happens will be known”—the age of omniscience. In her address, entitled “Privacy in the Age of Omniscience: Approaches in the United States and Europe,” Commissioner Brill discussed the European Court of Justice’s (ECJ) controversial Google Spain SL v. Agencia Española de Proeccíon de Datos decision; her “Reclaim Your Name” initiative; and the need for patience in addressing the privacy challenges facing consumers today.

FTC efforts. According to Brill, the FTC began exploring privacy in the “data-intensive world” in 2009, by holding a series of roundtables and by collecting written comments. Since then, the Commission has released a landmark report, detailing the need for a “strong technical and contractual framework for deidentifying data that is linkable to individuals, and to develop better ways for consumers to exercise control over sensitive information, such as health information,” Brill said. The Commission has also recommended that Congress enact legislation that places use restrictions on data brokers and their downstream clients; establishes meaningful notice and choice solutions; and creates a centralized, consumer-friendly portal that displays the existence and activities of data brokers for consumers. Brill also noted that “many of the FTC’s counterparts in Europe are examining similar questions about big data, privacy and economic growth.”

ECJ Google decision. The ECJ’s Google decision also raises a number of questions for consumers, Internet search firms, newspapers with search engines, and other companies, Brill commented. In the Google case, the ECJ decided whether information regarding social security debts a consumer purportedly owed 16 years earlier, should still be associated with searches on the consumer’s name. It determined that search engines may not display search results of this type of information, which “appear[s] to be inadequate, irrelevant or no longer relevant, or excessive…in light of the time that has elapsed” since collection.

According to Brill, the Google decision raises a number of questions, including: (1) What time period will determine whether a piece of information is relevant? (2) How should search engines assess relevance when users enter searches that are more focused than someone’s name? (3) Does the ECJ’s decision cover a newspaper’s own search engine that returns results ranked by relevance? (4) Does the decision apply to entities other than search engines, such as newspapers that were not required by law to publish the original information? and (5) Do the obligations identified in the decision apply outside the EU?

“Reclaim Your Name” initiative. As part of her “Reclaim Your Name” initiative, Commissioner Brill calls on data brokers to: (1) empower consumers by allowing them to find out how brokers are collecting and using their data; (2) provide consumers access to information data brokers have compiled about them; (3) allow consumers to “opt-out” if the data broker is selling their information for marketing purposes; and (4) provide consumers with the opportunity to correct errors in information used for substantive decisions. “These choices would allow consumers to keep aspects of their personal make-up away from big data driven marketing—something that will be increasingly important as more and more sensitive information about consumers becomes available,” Brill said.

Addressing privacy challenges. The FTC needs to “work with Congress and private sector stakeholders to develop legislation on consumer privacy, data security, and data brokers,” Brill stated. She also emphasized the need for patience for businesses that must apply the ECJ Google decision “as national courts and data protection authorities flesh out the ECJ’s pronounced principle of relevance in the context of search.” In closing, Brill called for continued cooperation and collaboration between the United States and Europe, noting that “we should not forget we are travelling into the Age of Omniscience – if not exactly together in lock step—then certainly together in the values that drive us forward.”

News: Privacy ConsumerProtection