Privacy lawyer Andrew Serwin of Foley & Lardner has uploaded a new article to SSRN: “The Federal Trade Commission and Privacy: Defining Enforcement and Encouraging the Adoption of Best Practices.” Here’s the abstract:
This article examines the history and path of privacy enforcement by the Federal Trade Commission, as well as the FTC’s recently issued “Protecting Consumer Privacy in an Era of Rapid Change: A proposed Framework for Businesses and Policymakers”, in which the FTC suggested the adoption of best practices, including a “privacy by design” framework. The article examines the history of Section 5 jurisdiction, the privacy enforcement cases by the FTC, the new proposed framework, and proposes that the FTC take the proposed framework and implement it in a way that includes a focus on the sensitivity of data, provides a “safe harbor” from enforcement for businesses that choose to adopt the framework, and link the framework in a meaningful way to existing EU processes, such as Binding Corporate Rules. By combining these elements, the FTC can achieve meaningful and focused self-regulation and provide appropriate protection to consumers, while giving business an incentive to adopt best-practices, and also increase the level of international cooperation regarding privacy.
You can download the full article from SSRN.