The FTC Privacy Report and the White House Consumer Privacy Bill of Rights: Policymaking Trends and What You Need to Know in 2013

Monica Desai, Michael Drobac, Melodi Gates and Greg Louer

Abstract:

This article analyzes the Federal Trade Commission's recent Privacy Report and the White House's proposed Consumer Privacy Bill of Rights in the context of current, related policymaking trends that are likely to impact the mobile industry in 2013, including calls for more industry self-regulation. The 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 Commission 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 Commission plans to pursue in implementing its recommendations, without requesting additional authority from Congress, many couched as offering "encouragement" to industry. At the same time, both the Report and the White House's proposed Consumer Privacy Bill of Rights call for increased industry self-regulation. Notably, while the Commission 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 Commission'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