Commissioner Previews FTC Privacy Actions, Seeks Interaction Among Do-Not-Track Mechanisms
SILICON VALLEY -- The FTC’s eagerly anticipated privacy report probably will be out before April, Commissioner Julie Brill told us Thursday. “You will see themes that you saw before in the draft report carried forward, but there will be other things” in the report, too, she said at a Hogan Lovells event. The contents are still being discussed at the commission, Brill said. She told us later that there are no highly contentious points, but neither is there complete agreement in principle. “It’s a work in progress,” she said.
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Brill said she would like all the kinds of online do-not-track mechanisms, including browser-based technologies and the Advertising Option Icon, to work together to put preferences into effect, so users don’t have to exercise choices in multiple technologies. “Industry stepped up to the plate” with the tools when the FTC’s draft privacy report recommended a self-regulatory or government-imposed do-not-track system, but now “we want to see how they work, how consumers interact with them,” she said at the forum.
Brill raised the possibility that the FTC will use its authority to punish “unfair” practices where no broken company promises are involved, as they have been in many of its privacy and data security cases. “We will continue to use it and enforce it where appropriate,” she said. But the commission’s other ground for action, deception, “is easier to prove,” Brill said. Unfairness enforcement must be justified by a cost-benefit analysis that isn’t required in deception cases, she said. “I happen to think” that personal dignity “is very important” as a consumer interest to protect, but it “becomes a little more amorphous” than financial harm and it’s questionable that there’s a consensus to recognize dignity as an interest that the law protects, Brill said.
The FTC can be expected to pay “a lot of attention” to mobile matters, Brill said. “The app issue is going to be very important,” she said. One question is how to give consumers “effective notice on a small device when things are happening” very quickly all around, Brill said. How to ensure that apps provide privacy policies is “a very tough question,” because there’s no government requirement do that, she said. And “it is very difficult when you're dealing with an industry with many players, some of them very, very small,” Brill said. The “best we can do is proceed in our careful, incremental way,” she said.
An FTC note to the European Commission questioning possible effects on international data flows of a proposed new data-protection regulation, as leaked in draft form last month, doesn’t create “a big argument” between the jurisdictions, Brill said at the event. The commission didn’t say anything to the effect of “you really need to pull back on this,” she said. And “there are some very positive things in this proposal, too … some things that bring the process closer to what we have here."
But where policy on the two sides of the Atlantic has tended in recent years toward “accidental convergence” as they dealt with similar consumer issues, Brill said, the draft raises the possibility of some new divergence. “It’s going to be an ongoing dialogue,” she said. “I don’t know where it’s going to end up. … We need to take the Europeans seriously and respond … very respectfully.” Harmony across the Atlantic is “going to ebb and flow,” because “we're different cultures, different societies,” she said.
It’s very helpful to policymakers to hear from companies about the obstacles that government rules around the world pose to their information flows, Brill said. “It’s great to hear from groups,” she said. “But dealing with an individual company can be a lot more real.”