US Regulatory Values and Privacy Consequences: Implications for the European Citizen

Privacy and Security

Article Snapshot

Author(s)

Chris Hoofnagle

Source

European Data Protection Law Review, Vol. 2, pp. 169-177, 2016

Summary

The Federal Trade Commission (FTC) will play a key role in regulating data flows between the United States and the European Union (EU) as a new agreement, the EU-US Privacy Shield, is implemented. The FTC's values differ from those protected by European privacy rules.

Policy Relevance

Not all privacy issues will be raised in consumer complaints. The FTC should continue to choose privacy issues strategically.

Main Points

  • The FTC is reluctant to address privacy issues when no substantial injury or economic harm to consumers can be found, so the agency will not bring privacy cases based on dignitary harms.
     
  • In 2009, when an FTC representative discussed dignity as value by privacy, critics responded that this type of harm was emotional and subjective, and the agency retreated; in bringing a case involving a poorly designed webcam that allowed strangers to see into consumers’ homes, the FTC relied on the more widely supported value of privacy in the home.
     
  • The FTC also faces structural limitations; privacy is just a small part of the agency's overall efforts.
     
  • Europeans place priority on having every complaint investigated; however, this would lead the FTC to focus on identity theft rather than on larger privacy concerns raised by firms like Facebook and Google.
     
  • The FTC should enhance oversight of companies under consent decrees by requiring technical testing of their systems.
     
  • Courts in the United States have ruled that privacy laws can violate free speech rights, but are more willing than European courts to accept privacy suits based on contract law.
     

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