The New York Times today has published some of the views of David C. Vladeck, the new head of the Bureau of Consumer Protection at the Federal Trade Commission, regarding the FTC’s role in protecting consumer privacy.
By way of background, in announcing Mr. Vladeck’s appointment April 14, 2009, the FTC noted that “David C. Vladeck, who will serve as Director of the Bureau of Consumer Protection, has been a Professor of Law at Georgetown University Law Center, teaching federal courts, government processes, civil procedure, and First Amendment litigation. He co-directed the Center’s Institute for Public Representation, a clinical law program for civil rights, civil liberties, First Amendment, open government, and regulatory litigation. Vladeck previously spent almost 30 years with Public Citizen Litigation Group, including 10 years as Director.”
The FTC has been, and likely will continue to be, among the most aggressive federal agencies in the U.S. privacy arena. Traditionally, the FTC had prosecuted companies for how they collect and use consumer information, if consumers had been deceived, or if consumers had suffered economic harm. Although you can read The New York Times article in full, Mr. Vladeck has proposed adding a new thrust to the future of FTC privacy enforcement. He is reported to have suggested that if companies collect too much information from a consumer, that, in itself, is a harm to the inherent privacy of individuals AND (if his views turn out to be prophetic) is prosecutable, no matter how conspicuously or completely the nature and extent of information collection is disclosed to the consumer. This concept of damage to the "dignity" of the consumer goes well beyond the traditional U.S. privacy principles that have typically compensated consumers only when economic harm or damage has occurred, or when there are statutory penalties for violations of law or regulation.
If Mr. Vladeck’s views transform into regulatory policy and enforcement activity, this highly subjective and vague standard (How much is too much? Why shouldn’t proper disclosure and choice be sufficient?) could have a huge impact on data collection, could lead to a huge flurry of litigation, and would arguably create a "big chill" for all—including consumers. Stay tuned.