by Aaron Fluitt, Fellow
Georgetown’s David Vladeck spoke on Capitol Hill Friday as part of a panel on the challenges and opportunities facing the FTC in the areas of privacy and data security. Professor Vladeck was Director of the FTC’s Bureau of Consumer Protection from 2009 to 2012, where he supervised the Bureau’s work to protect consumers from unfair, deceptive and fraudulent practices, including actions involving Google and Facebook. The panel was convened by the Congressional Civil Justice Caucus Academy, an initiative of George Mason University’s Antonin Scalia Law School.
Panelists lauded the FTC’s recent focus on identifying and characterizing the sorts of “informational injuries” consumers suffer when data about them is misused, and agreed that this will probably remain a central focus of the incoming team of FTC commissioners as well. While there have been several recent challenges to the FTC’s authority to protect consumers where specific harms have not yet come to fruition, as in the LabMD case before the 11th Circuit (which one panelist predicted the FTC is on track to lose), Professor Vladeck noted that the FTC Act directs the agency to prevent harm to consumers as well.
Panelists also highlighted the question of whether companies’ privacy claims should count as material representations for the purposes of the FTC’s authority to enforce the prohibition against deceptive practices. One panelist noted that privacy commitments may be distinguishable from advertising claims because the privacy representations are not usually presented to consumers in major ad campaigns, but rather users must seek out such claims in privacy policies and terms of service.
Panelists spent much of the time discussing the implications of the recent revelations about Facebook’s lack of oversight of its data sharing practices and Cambridge Analytica. Although one panelist pointed out that the FTC has never found that using data to target consumer advertising constitutes a harm, Professor Vladeck noted that using individual data to target individuals and push them to vote for a particular candidate is different from any case the FTC has previously seen. Moreover, Vladeck noted, if you look at the FTC’s original 2011 complaint against Facebook, the agency specifically highlighted how in 2009 Facebook’s forced sharing exposed users’ political views. From 2009 to 2018, the harm of sharing political data has come full-circle.
Among the many significant issues implicated in the recent Facebook scandal, Vladeck also discussed how the FTC will face a very difficult policy determination regarding what sort of “general deterrence” message the agency wants to send to other companies in assessing civil penalties for violations of the original consent decree.
Professor Vladeck also noted that the focus on bringing more technological expertise into the agency will probably accelerate. Even outside the privacy space, such as the unfair practices of lenders operating offshore, virtually all recent FTC actions have had a tech aspect. Vladeck predicted that this may finally lead to the creation of a long-contemplated Bureau of Technology in the future.
Professor Vladeck also spoke last week at an event on the Cambridge Analytica scandal hosted by the Open Technology Institute at New America. A video link of that event is available here.