Former FTC Chair Frames One View of Privacy Protection

Talks about need for uniformity, and not discouraging innovative options
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Former Republican Federal Trade Commission acting chair Maureen Ohlhausen, co-chair of the 21st Century Privacy Coalition, said that federal privacy legislation is needed, but needs three "key attributes," essentially outlining the Republican view of what is needed in government-mandated comprehensive privacy protections.

That came in testimony at a hearing in the Senate Commerce Committee Wednesday (Dec. 4) on such legislation.

The three musts of any bill, she told the committee, were: 1) consumer visibility into a companies data collection, use and sharing practices as well as choice "regarding" those practices "calibrated" to the sensitivity of the data; 2) uniform protections and rights throughout the digital economy; and 3) strong enforcement that provides consumer protections form harmful practices, but still allowing companies " to provide and develop innovative products and services that consumers want."

Those would include requirements for meaningful consent for data use, again calibrated to the sensitivity of data, and "certain rights of access, correction, and deletion where appropriate....Striking the right balance in categorizing data as sensitive or non-sensitive is crucial for consumers and essential for an effective privacy law," she said.

Ohlhausen argued that federal legislation should preempt "a proliferation of different state privacy requirements [that] would create inconsistent privacy protections for consumers."

She said that by uniform protections she meant applying the law to all entities, tech companies, ISPs, and retailers. "Striking the right balance in categorizing data as sensitive or non-sensitive is crucial for consumers and essential for an effective privacy law," she said.

On the enforcement front, she said that the FTC needs fining authority for first-time violations--currently it is only triggered by second offenses. She also said the FTC should have limited rulemaking authority. Currently its power is to file suit and/or secure settlements for anticompetitive or false and deceptive conduct.

She does not favor private rights of action, but says state attorneys general need to be empowered to enforce the federal law. She said private rights of action often primarily benefit lawyers while providing little actual relief to victims and could divert resources from compliance to litigation.

"Providing the FTC and state AGs with enforcement power, backed up with civil fining authority and expanded resources, represents a far better approach for consumers," she said.

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