Antitrust Law Daily Wrap Up, PRIVACY NEWS: FTC Commissioner discusses future of privacy laws and enforcement, (Sep 16, 2013)

By Jody Coultas, J.D.

The key privacy issues likely to face the FTC in 2014 and privacy-related activity in the U.S. Congress were discussed by Commissioner Maureen K. Ohlhausen at the Forum for EU-U.S. Legal-Economic Affairs in Berlin, Germany on September 14. In her remarks, entitled “The FTC’s Privacy Agenda for the 2014 Horizon,” Ohlhausen stated her belief that the FTC would focus on data security, big data, and mobile phone cases. The speech also noted Congress’s interest in moving forward on data security legislation.

The commissioner stated that the FTC has brought more than 100 spam and spyware cases and more than 47 data security cases, including those against an international hotel chain, a major data broker, a national drugstore chain, and the social media site, Twitter. The FTC has also brought actions against companies such as Google and Facebook for violating their privacy promises. In addition to legal actions, the FTC provides information on its webpage to help consumers avoid becoming victims of identity theft and workshops on consumer issues.

Ohlhausen noted that the FTC is the primary U.S. consumer protection agency and can enforce legal protections that cover financial and credit information under the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Gramm-Leach-Bliley Act, and the Children’s Online Privacy Protection Act. However, the main statutory source of FTC authority and oversight of consumer privacy issues derives from Section 5 of the FTC Act.

The FTC can proceed using its Section 5 authority, but certain legal gaps could be closed through federal legislation to protect sensitive data or notify individuals when such data is lost, stolen, or accessed without authority, according to Ohlhausen. A single, federal law would also help standardize what standards companies should meet and let consumers know what to expect when a breach occurs.

Big data will also likely be a huge concern for the FTC in the future as more companies collect personal data about consumers, according to Ohlhausen. The FTC has already held a public workshop to explore the privacy implications of broad collection of data about consumers’ online activities and began a study of the data broker industry. Ohlhausen also noted Congress’s interest in the data broker industry, specifically the types of information being collected about consumers.

The FTC has brought two mobile cramming cases resulting from companies placing unauthorized charges on phone bills, which will lead to refunds for consumers, according to Ohlhausen. A large percentage of the world’s population has access to a mobile phone, noted Ohlhausen, which has increased the potential for abuses and presented new challenges to the FTC. Ohlhausen stated her belief that the FTC will focus on: how marketers ensure that the information consumers need to fully evaluate an advertiser’s statements is clear and conspicuous; how advertisers effectively communicate this information on social media platform; and how should businesses relay key information about their privacy practices to consumers, including how they may be collecting, using, or sharing consumer data.

In closing, Ohlhausen noted that an important question in 2014 will be whether the privacy options consumers desire are available to them through products or services in the marketplace or through industry self-regulation. Many companies now sell products that cater directly to consumers with heightened privacy preferences. Ohlhausen also noted that self-regulation would also present consumers with more privacy options.

News: Privacy