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Reed Freeman is a Washington D.C.-based privacy partner with law firm Morrison & Foerster. Mr. Freeman serves as lead counsel in FTC and state consumer protection investigations and negotiations. He also represents clients in false advertising disputes in federal court, and helps companies create and evaluate privacy compliance programs for local, state, federal and international laws.

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FTC Privacy Roundtable, Part II: All About the Tech

Written on
Jan 27, 2010 
Author
Reed Freeman  |
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FTC Privacy Roundtable, Part II: All About the Tech

privacy_smallADOTAS – Tomorrow, Thursday, Jan. 28, at the University of California Berkeley School of Law, the Federal Trade Commission kicks off the second of its three-part roundtable series, “Exploring Privacy” — a tutorial on where the agency stands on enforcement of privacy matters that should be of high importance for the advertising, marketing, retail, e-commerce and financial services industries.

At issue are a host of contentious consumer privacy matters, including online behavioral advertising rules, protection of consumer online data, privacy disclosures and how to deal with information brokers –- all of which could lead to new policy changes.

The FTC’s privacy roundtable series is designed to create a record for the FTC to choose a new means of thinking about, and enforcing, its existing authority to police deceptive and unfair practices as they relate to consumers’ privacy.

The first roundtable event on Dec. 7 produced a wealth of discussion on behavioral advertising in particular. Industry representatives came out with more details on the proposed DMA/IAB/ANA/AAAA/CBBB self-regulatory program, including the idea of an icon in or around behaviorally-targeted ads themselves.

It is clear that the FTC wants to move away from notice and choice, and that they will issue their report following the roundtables in July detailing a new privacy model.

The Berkeley roundtable will focus on how technology can be used to both cause privacy concerns and to enhance consumer privacy. The key to this roundtable event, for the business community, is to showcase all of the privacy-enhancing technology that is now available, and what we can expect in the near future.

This is because the FTC will take privacy-enhancing technologies — that is, how reasonable consumers can protect themselves — into account in developing its new privacy enforcement paradigm in its report following the roundtables.

Ultimately, the FTC could do a number of things in its report following the roundtables. It could ask Congress to pass the FTC Improvements Act and, in so doing, ask that the bill be amended to include an express Congressional call for the FTC to create a new privacy trade regulation rule. Or the FTC could ask for the same thing, but limit its request to behavioral advertising.

Or the FTC could just say what it thinks its existing authority allows and prohibits, and create a spectrum of things that require no notice because consumers expect them; things that require notice but opt out because they do not pose an undue threat to privacy; things that require notice and opt-in because of their potential affect on privacy; and — it is possible — things that are flatly prohibited, even with notice and consent.

I do not think, however, that the FTC will strike at the heart of behavioral advertising without Congressional backing because the unintended consequences for web publishers and advertisers are too great.





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