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When the Default is No Penalty: Negotiating Privacy at the NTIA

26 Pages Posted: 7 Sep 2016 Last revised: 15 Sep 2016

Margot E. Kaminski

University of Colorado Law School; Yale University - Yale Information Society Project; Yale University - Law School; University of Colorado at Boulder - Silicon Flatirons Center for Law, Technology, and Entrepreneurship

Date Written: September 6, 2016

Abstract

Consumer privacy protection is largely within the purview of the Federal Trade Commission. In recent years, however, the National Telecommunications and Information Administration (NTIA) at the Department of Commerce has hosted multistakeholder negotiations on consumer privacy issues. The NTIA process has addressed mobile apps, facial recognition, and most recently, drones. It is meant to serve as a venue for industry self-regulation. Drawing on the literature on co-regulation and on penalty defaults, I suggest that the NTIA process struggles to successfully extract industry expertise and participation against a dearth of federal data privacy law and enforcement. This problem is most exacerbated in precisely the areas the NTIA currently addresses: consumer privacy protection around new technologies and practices. In fact, industry may be more likely to see the NTIA process as itself penalty-producing and, thus, be disincentivized from meaningful participation or adoption.

Keywords: privacy, co-regulation, governance, big data, drones, facial recognition, mobile apps

JEL Classification: K00, K1, K10, K23

Suggested Citation

Kaminski, Margot E., When the Default is No Penalty: Negotiating Privacy at the NTIA (September 6, 2016). Denver University Law Review, Vol. 94, No. 923, 2016; Ohio State Public Law Working Paper No. 366. Available at SSRN: https://ssrn.com/abstract=2835434 or http://dx.doi.org/10.2139/ssrn.2835434

Margot Kaminski (Contact Author)

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States

Yale University - Yale Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

University of Colorado at Boulder - Silicon Flatirons Center for Law, Technology, and Entrepreneurship ( email )

Wolf Law Building
2450 Kittredge Loop Road
Boulder, CO
United States

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