Abstract

http://ssrn.com/abstract=2461096
 


 



The Scope and Potential of FTC Data Protection


Woodrow Hartzog


Samford University - Cumberland School of Law; Stanford Law School Center for Internet and Society

Daniel J. Solove


George Washington University Law School

November 1, 2015

83 George Washington Law Review 2230 (2015)
GWU Law School Public Law Research Paper No. 2014-40
GWU Legal Studies Research Paper No. 2014-40

Abstract:     
For more than fifteen years, the FTC has regulated privacy and data security through its authority to police deceptive and unfair trade practices as well as through powers conferred by specific statutes and international agreements. Recently, the FTC’s powers for data protection have been challenged by Wyndham Worldwide Corp. and LabMD. These recent cases raise a fundamental issue, and one that has surprisingly not been well explored: How broad are the FTC’s privacy and data security regulatory powers? How broad should they be?

In this Article, we address the issue of the scope of FTC authority in the areas of privacy and data security, which together we will refer to as “data protection.” We argue that the FTC not only has the authority to regulate data protection to the extent it has been doing, but that its granted jurisdiction can expand its reach much more. Normatively, we argue that the FTC’s current scope of data protection authority is essential to the United States data protection regime and should be fully embraced to respond to the privacy harms unaddressed by existing remedies available in tort or contract, or by various statutes. In contrast to the legal theories underlying these other claims of action, the FTC can regulate with a much different and more flexible understanding of harm than one focused on monetary or physical injury.

Thus far, the FTC has been quite modest in its enforcement, focusing on the most egregious offenders and enforcing the most widespread industry norms. Yet the FTC can and should push the development of norms a little more (though not in an extreme or aggressive way). We discuss steps the FTC should take to change the way it exercises its power, such as with greater transparency and more nuanced sanctioning and auditing.

Number of Pages in PDF File: 71

Keywords: FTC, Federal Trade Commission, privacy, data security, Wyndham, LabMD, FTCA, Section 5, deception, unfairness


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Date posted: July 1, 2014 ; Last revised: January 12, 2016

Suggested Citation

Hartzog, Woodrow and Solove, Daniel J., The Scope and Potential of FTC Data Protection (November 1, 2015). 83 George Washington Law Review 2230 (2015); GWU Law School Public Law Research Paper No. 2014-40; GWU Legal Studies Research Paper No. 2014-40. Available at SSRN: http://ssrn.com/abstract=2461096

Contact Information

Woodrow Hartzog
Samford University - Cumberland School of Law ( email )
800 Lakeshore Dr.
Birmingham, AL 35229
United States
HOME PAGE: http://cumberland.samford.edu/faculty/woodrow-n-hartzog
Stanford Law School Center for Internet and Society ( email )
Palo Alto, CA
United States
HOME PAGE: http://cyberlaw.stanford.edu/profile/woodrow-hartzog

Daniel J. Solove (Contact Author)
George Washington University Law School ( email )
2000 H Street, N.W.
Washington, DC 20052
United States
202-994-9514 (Phone)
HOME PAGE: http://www.law.gwu.edu/facweb/dsolove/

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