Antitrust Law Daily Wrap Up, PRIVACY NEWS: FTC is primary privacy, data protection agency in U.S., Ohlhausen says, (Mar 24, 2016)

By Greg Hammond, J.D.

“Despite rumors to the contrary, the FTC is the primary privacy and data protection agency in the U.S., and probably the most active enforcer of privacy laws in the world,” FTC Commissioner Maureen K. Ohlhausen remarked yesterday at the Free State Foundation’s Eighth Annual Telecom Policy Conference, held at the National Press Club in Washington, D.C.

In her prepared remarks, entitled “Privacy Regulation in the Internet Ecosystem,” Commissioner Ohlhausen touted the FTC’s privacy and data security enforcement actions and privacy approach, which “maximizes consumer self-determination.” She also highlighted similarities and differences between the FTC’s Do Not Call Rule and an FCC privacy rule proposal, announced by Federal Communications Commission (FCC) Chairman Tom Wheeler.

According to Ohlhausen, both the Do Not Call Rule and the FCC privacy rule proposal establish a baseline practice intended to protect privacy and mandate a framework for consumer choices. However, the FCC’s proposal “differs significantly from the choice architecture the FTC has established,” Ohlhausen stated, in that the FCC proposal seeks to mandate that broadband Internet Service Providers (ISPs) adopt a specific opt-in/opt-out regime. However, opt-in mandates “unavoidably reduce consumer choice,” Ohlhausen remarked, because: (1) where the average consumer preference is to share particular information, the mandate unnecessarily raises costs to companies and consumers; and (2) opt-in mandates prevent unanticipated beneficial uses of data.

Ohlhausen also noted that, “the current FCC proposal appears to reflect the preferences of privacy lobbyists who are frustrated with the lax privacy preferences of average American consumers,” and the proposal applies to only one segment of the internet ecosystem—broadband ISPs—“even though there is good evidence that ISPs are not uniquely privy to your data.”

Commissioner Ohlhausen took the opportunity to “push back a little bit on two narratives.” In response to suggestions that the FCC is “better suited to govern consumer privacy because it considers the effects of privacy on competition,” Ohlhausen stated, “fully half of the FTC’s mission is to evaluate and promote competition, and our Bureau of Economics reviews every single privacy enforcement action we take.” In addition, in response to an assertion that the FTC is not a “Data Protection Agency,” Ohlhausen commented, “I respectfully suggest that our 150+ privacy and data security-related enforcement actions, our key international role including Safe Harbor and Privacy Shield enforcement, and our Congressional mandate to implement and enforce a number of privacy laws, including COPPA, FCRA, GLB and others, actually make the FTC one of the most active and effective data protection agencies in the world.”

News: Privacy FederalTradeCommissionNews