Antitrust Law Daily Wrap Up, PRIVACY NEWS: FTC loss in data breach case could spur Congressional action: Ohlhausen, (Jul 19, 2013)

By Lynn Stanton,TRDaily If the Federal Trade Commission were to lose a pending court challenge of its authority to enforce data security on the grounds of unfairness, rather than on the grounds of breaking an explicit commitment to guard customers’ data, “that might motivate Congress to act” to grant the agency explicit authority, according to FTC Commissioner Maureen Ohlhausen.

“I think in Congress there’s a little more energy around notification and data breaches than around general privacy,” Commissioner Ohlhausen added during a Q&A session at a Media Institute lunch yesterday.

Apps have caught the attention of the FTC because of the huge growth in consumers’ use, Ohlhausen said. She added that there are “common elements” between the approach to mobile app privacy requirements taken by the FTC and the State of California and the approach being contemplated in a multi-stakeholder privacy proceeding convened by the National Telecommunications and Information Administration. For example, the various approaches contemplate that an app should have a privacy policy that’s clear and available to users, that it follows its privacy policy, and that it offers a “short notice” regarding its privacy practices and the information it accesses.

The Commissioner was asked who should bear the obligation to make sure consumers understand how do-not-track (DNT) browser preferences might or might not work, especially if the advertisers don’t sign on to the standard being developed by the World Wide Web Consortium’s tracking protection working group. Ohlhausen said the FTC can get involved only if a company makes a promise to consumers about how their DNT preferences will work. “They have to live up to the promises made,” she said. But if there’s no promise, “that’s not something the FTC can get involved in.”

News: Privacy FederalTradeCommissionNews