Antitrust Law Daily Wrap Up, PRIVACY NEWS: FTC Commissioner Brill urges E.U.-U.S. cooperation on privacy in Brussels speech, (Sep 18, 2013)

By Tobias J. Gillett, J.D., LL.M.

In a September 17 keynote address before the Forum Europe Fourth Annual EU Data Protection and Privacy Conference in Brussels, Belgium, FTC Commissioner Julie Brill called for cooperation between the United States and the European Union on privacy protection issues.

Brill began her prepared remarks with a reference to the recent revelations regarding the U.S. National Security Agency’s surveillance programs and the controversy that has surrounded them. She identified three important facts that should be considered in the current debate regarding privacy issues, including (1) that “the U.S., EU, and many other countries around the world place tremendous value on privacy”; (2) that “national security exceptions in laws, including privacy laws, are the norm, not the exception, for countries around the globe, including EU Member States and third countries that have received European Commission adequacy determinations”; and (3) that “the recent events provide a teachable moment that should encourage us to redouble our efforts on improving transparency and privacy protections for consumers in the commercial sphere.”

The Commissioner discussed the efforts the FTC has taken to protect consumer privacy, including actions against household names such as Google, Facebook, and MySpace that resulted in orders governing their data collection and use activities for the next 20 years, and actions against less well-known companies over spam, spyware, information security, data collection and use, and Children’s Online Privacy Protection Act issues. She noted the FTC’s recent action against TRENDnet, Inc. for failing to secure the software for its Internet-accessible video cameras and observed that the FTC’s enforcement efforts constituted the “common law of privacy” in the United States through which the agency identified “the privacy practices that are deceptive or unfair.”

Brill also described the FTC’s work to develop policies to improve privacy protection, including hearings and reports on issues such as facial recognition technology, children’s apps, mobile privacy disclosures, and mobile payments. In particular, she highlighted last year’s privacy report and a report on the data broker industry the FTC intends to issue later this year. She referred to her “Reclaim Your Name” initiative to encourage “industry to develop a user-friendly, one-stop online shop to provide consumers with some tools to find out about data broker practices and to exercise reasonable choices about them.” She also noted the Obama Administration’s current work on privacy legislation to implement its Consumer Privacy Bill of Rights.

Through these and other efforts, “the U.S. aims to achieve many of the same objectives that are outlined in the draft EU data protection regulation,” Brill contended. The EU and U.S. might differ regarding certain approaches to protecting privacy, but they shared common goals, in Brill’s view.

In this environment, “interoperability is critical,” and “[t]he U.S.-EU Safe Harbor Framework, which enables the lawful transfer of personal data from the EU to the U.S., is vital to preserving interoperability,” according to Brill. She contended that the Safe Harbor Framework remained adequate to protect EU citizens’ data in the commercial context, even in light of the NSA revelations, asserting that her role in protecting EU consumers’ privacy would be “much harder” in its absence.

Brill observed that the Safe Harbor Framework was not “designed to address national security issues,” and that all data transfers were subject to the same national security exceptions. The principal difference for transfers made pursuant to the Safe Harbor was that the FTC was “the cop on the beat” for those transfers. Therefore, the Safe Harbor “provides more, not less, privacy protection,” according to Brill.

News: Privacy ConsumerProtection FederalTradeCommissionNews