The FTC Privacy Report: What the Report Means and How You Can Get Ahead of Enforcement Trends by Implementing Best Practices Now

Monica Desai, Deborah Lodge, Melodi Gates, Maria Wolvin and Greg Louer

Abstract:

This article analyzes the trends exhibited in the Federal Trade Commission's recent Privacy Report and its companion implementation plan in the context of recent, related enforcement actions. Recent enforcement actions are analyzed and a set of 10 practical tips and best practices that can be implemented now to improve consumer privacy and lower risks associated with regulatory compliance are provided. The Privacy Report's final privacy framework consists of four key elements, including a detailed scope discussion and best practices for privacy by design, simplified consumer choice and transparency. The FTC continues to call upon Congress to enact a series of legislative proposals that address comprehensive, baseline privacy policies, greater transparency for and control over the practices of data brokers, and FTC rulemaking to establish "Do Not Track" regulations. The report also enumerates action items that the FTC plans to pursue in implementing its recommendations, many couched as offering "encouragement" to industry, without requesting additional authority from Congress. Notably, while throughout the report the FTC reiterates that its framework is not intended to serve as a template for law enforcement actions or regulations under the laws it currently enforces, such statements should be viewed with skepticism. This kind of report inevitably changes the playing field, and recent enforcement actions demonstrate the FTC's intense interest and increasing expectations regarding consumer privacy. Organizations that collect and utilize consumer information, such as mobile marketers, should tread with caution, collect advice and best practices, and begin planning for and implementing key elements of the framework, as soon as practicable.

Introduction