Crystal-balling Monday’s FTC Announcement of its Final Privacy Report

Issues addressed in the draft are likely to be refined.  For example, the draft Report detailed the limitations of the current notice and choice model (for example, the burden on consumers in reading and understanding privacy policies) and that likely will be restated.   Proposals for new ways to provide transparency and empower consumers could well be included in the Report.

The knotty issue of what constitutes PII subject to protection also may be addressed in the Report, including a specification of what constitutes commonly accepted practices that remove the need for consumer consent.    

The FTC can be expected to advocate a framework calling for companies to promote consumer privacy throughout their organizations and at every stage of the development of their products and services.  This includes incorporating substantive privacy protections — such as data security and retention practices — into business processes (such as is touted in the Privacy by Design model developed by the Privacy Commissioner of Ontario, Dr. Ann Cavoukian), and maintaining comprehensive data management procedures throughout the lifecycle of products and services.  The FTC has imposed requirements for comprehensive privacy programs in the recent consent decrees with Google and Facebook.

One specific proposal contained within the Draft Report was a "Do Not Track" mechanism that the FTC  proposed be advanced either by legislation or enforceable industry self-regulation.  That issue can be expected to be addressed in the Final Report.  Presumably, the Commission will acknowledge the substantial progress that was been made by industry and NGOs since the draft Report was issued.  Indeed, the proposal of the Digital Advertising Alliance on Do Not Track took center stage at the White House when the Administration’s privacy blueprint was unveiled in February.

It will not be surprising for the Report to echo the Administration’s call for a comprehensive privacy law, enhanced FTC authority and multi-stakeholder formed codes of conduct.

Since the release of the draft issues like Apps, geolocation privacy, and data brokers have been in the headlines and have been the subject of FTC activity.  It will not be surprising to see those issues addressed as well.

When the Report is issued, the Hogan Lovells Chronicle of Data Protection will provide an analysis for its readers.

Stay tuned!

Authored by Christopher Wolf.