United States: Two Speeches In Three Days: Protecting Privacy And Consumer Data In The Digital Age Is FTC Priority

Last Updated: October 9 2015
Article by Ethan G. Ostroff and Mary C. Zinsner

Federal Trade Commissioner Julie Brill promoted the FTC's role as the nation's leading consumer protection and privacy agency with respect to Internet, social media, and smartphone technology in two recent speeches occurring over a three-day span.  In both speeches, Brill referenced and reiterated the FTC's concerns regarding data collection, the interface of smartphone technology and privacy, and the need for appropriate consumer disclosures.  From the perspective of the FTC, consumers must understand and make thoughtful decisions about the products they buy and the personal data being shared.  Likewise, retailers, industries involved in the sale of goods and services, and ISPs must be truthful in their marketing and consumer disclosures. 

Most recently, on September 28, Brill gave the keynote address at the Better Business Bureau's National Advertising Division Annual Conference.  "With the rapid rise of social media and constant connectivity through more and more devices swapping more and more information, we are entering the democratization of truth," Brill remarked.  Consumers are making decisions based on information and reviews they read online not knowing or understanding fully that companies may be monetizing the reviews, paying bloggers, and causing employees to tweet in support of their products on personal Twitter accounts.  Brill emphasized that it is increasingly pursuing enforcement actions requiring companies to engage in endorsement practices which are "truthful and not misleading."  She further stated:  "If there is a connection between an endorser and an advertiser that would affect how consumers evaluate the review, that connection must be clearly and conspicuously disclosed." 

At the Better Business National Advertising Division Annual Conference, Brill also emphasized the FTC's increasing focus on targeted consumer data collection.  "At a bare minimum, where device-level data is collected or stored, it is critical that consumers are aware of retail mobile location tracking when it is happening, and are able to exercise some control over its use."  And, remarked Brill, companies must also be truthful about consumer choices, even when tracking is occurring invisibly and there is no way for consumers to understand that it is happening, let alone exercise any choices about data use.  The FTC will continue to examine and study data security and the necessity of privacy notices and disclosures even for those connections having no user interface.  In sum, retailers and advertisers must be aware, Brill warned, that "the principles of truth in advertising, consumer control over their data, and privacy protection behind which the FTC has always stood can and do still apply" in the rapidly evolving Internet age. 

The Commissioner similarly emphasized the FTC's jurisdiction over unfair or deceptive acts affecting Internet commerce in her remarks on September 26, during a keynote address at the Telecommunications Policy Research Conference at George Mason University School of Law.  Her remarks delivered two messages:  (1) the FTC welcomed the FCC as "another cop on the privacy beat" as a consequence of the FCC's recent Open Internet Order; and (2) the reclassification of broadband Internet access service as a common carrier service outside of the FTC's purview would not stop the FTC from continuing its core mission of protecting consumer privacy in the digital age. 

In her remarks at the Telecommunications Policy Research Conference, Brill emphasized the narrowness of the FCC's Open Internet Order, and clarified that the FTC still retained "a target-rich environment" with authority over a broad scope of unfair or deceptive acts affecting Internet commerce:  "Our consumer protection authority extends to the apps, edge services, ad networks, advertisers, publishers, data brokers, analytics firms, and the many other actors whose data practices are part of the delivery of valuable services to consumers but also, in some instances, raise privacy and data security concerns."  She emphasized that the Order does not affect the FTC's ability to enforce the FTC Act against common carriers for activities that are not common carriage services.  The Commissioner reminded the audience of the FTC's role as a civil law enforcement agency responsible for protecting consumers from a broad array of unfair or deceptive acts or practices under the FTC Act.  Noting recent enforcement actions in the communications space involving crammed charges imposed on consumers, litigation and enforcement cases arising out of misrepresentations regarding "unlimited" data plans, and increased focus on robocall scams targeting minorities, elderly, and financially vulnerable consumers, Brill warned that the FTC's focus on these areas would continue notwithstanding the "limited change" brought about by the Open Internet Order.  Moreover, Brill emphasized the distinct remedies that the FTC and FCC could obtain.  The FTC has authority to obtain restitution for consumers when they lose money as a result of unfair or deceptive practices, while the FCC's authority is penal in nature and geared towards deterrence. 

Brill concluded her remarks by focusing on the critical importance of privacy and trust in the digital age.  The use of smartphones, computers, and other devices by consumers paints a "deeply personal portrait" of the daily habits of users and members of their household.  Broadband providers acquire vast amounts of unencrypted data in manners often invisible to consumers.  It is both the use of data and the disclosure of the data which is garnering the attention of the FTC, Brill noted.  ISPs and other Internet connected industries should expect increasing scrutiny and the development of critical details intended to protect the disclosure and use of sensitive consumer data derived from the Internet.  In addition, data security is of paramount importance and a top consumer protection priority for the FTC, cautioned Brill.  She warned that the FTC will remain vigilant in protecting the security of customer data in the hands of ISPs:  "Like other companies that maintain huge amounts of sensitive data about their customers, ISPs could become an attractive target for attackers, and the risk to consumers increases as the amount of data that ISPs store increases.  As a result, ISPs should also be held accountable for maintaining appropriate security for consumers' data."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Ethan G. Ostroff
Similar Articles
Relevancy Powered by MondaqAI
Frankfurt Kurnit Klein & Selz
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Frankfurt Kurnit Klein & Selz
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions