Note, Privacy Policies, Terms of Service, and FTC Enforcement: Broadening Unfairness Regulation for a New Era
39 Pages Posted: 29 Mar 2017
Date Written: December 1, 2012
This Note examines website privacy policies in the context of FTC regulation. The relevant portion of Section 5 of the Federal Trade Commission Act, 15 U.S.C. §45(a), uses the following language to define the scope of the agency's regulatory authority: "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful." Specifically, this Note analyzes the FTC's power to regulate unfair practices (referred to as the FTC's "unfairness power") granted by Section 5, and also discusses the deception prong of Section 5, which allows the agency to regulate and prevent deceptive commercial acts by businesses.
This Note argues that, given the prevalence of confusing and obscure data collection practices, the FTC must aggressively interpret its statutory authority in order to effectively protect consumers. By examining three prominent websites — Google, Facebook, and Twitter — this Note demonstrates how some of their practices might be considered unfair toward consumers, in light of the statements set out in their privacy policies. However, the FTC would need to reformulate its policy choices concerning unfairness and pursue a more aggressive regulatory strategy in order to address those potentially unfair practices.
Keywords: privacy, regulation, FTC
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