All posts in FTC

The Future of the FTC on Privacy and Security

Daniel Solove
Founder of TeachPrivacy

Future of the FTC

Co-authored by Professor Woodrow Hartzog

The Federal Trade Commission is the most important federal agency regulating privacy and security. Its actions and guidance play a significant role in setting the privacy agenda for the entire country. With the Trump Administration about to take control, and three of the five Commissioner seats open, including the Chairperson, a lot could change at the FTC. But dramatic change is not common at the agency. What will likely happen with the FTC’s privacy and security enforcement over the next four years?

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A Gaping Hole in Consumer Privacy Protection Law

Daniel Solove
Founder of TeachPrivacy

A Gaping Hole in Consumer Privacy Protection Law

Recently, the U.S. Court of Appeals for the 9th Circuit issued a decision with profound implications for consumer privacy protection law. In FTC v. AT&T Mobility (9th Cir. Aug. 29, 2016), a 3-judge panel of the 9th Circuit held that the Federal Trade Commission (FTC) lacks jurisdiction over companies that engage in common carrier activity. The result is that there is now a gaping hole in consumer privacy protection law.

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The 5 Things Every Privacy Lawyer Needs to Know about the FTC: An Interview with Chris Hoofnagle

Daniel Solove
Founder of TeachPrivacy

Privacy and Security Training

The Federal Trade Commission (FTC) has become the leading federal agency to regulate privacy and data security. The scope of its power is vast – it covers the majority of commercial activity – and it has been enforcing these issues for decades. An FTC civil investigative demand (CID) will send shivers down the spine of even the largest of companies, as the FTC requires a 20-year period of assessments to settle the score. Continue Reading

The Scope and Potential of FTC Data Protection

Daniel Solove
Founder of TeachPrivacy

FTC Privacy and Security

I am pleased to announce the publication of my article, The Scope and Potential of FTC Data Protection., 83 George Washington Law Review 2230 (2015).  I wrote the article with Professor Woodrow Hartzog.

FTC StatueThe article addresses  the scope of FTC authority in the areas of privacy and data security (which together we 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.

We contend that the FTC can and should push the development of norms a little more (though not in an extreme or aggressive way). We discuss why the FTC should act with greater transparency and more nuanced sanctioning and auditing.

The article was part of a great symposium organized by the George Washington University Law Review: The FTC at 100.

GW Law Review FTC Symposium

Here is a table of contents of the issue, along with links to where you can access each essay and article.

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Start with Security: The FTC’s Data Security Guidance

Daniel Solove
Founder of TeachPrivacy

FTC Start with Security 03

Recently, the FTC issued a short guide to what organizations can do to protect data security.  It is called Start with Security  (HTML) — a PDF version is here.  This document provides a very clear and straightforward discussion of 10 good information security measures.  It uses examples from FTC cases.

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5 Things the FTC Should Do to Improve Data Security in the Wake of Wyndham

Daniel Solove
Founder of TeachPrivacy

Federal Trade Commission - FTC - Data Security

Over at Fierce IT Security, Professor Woodrow Hartzog and I have a new essay, 5 Things the FTC Should Do to Improve Data Security in the Wake of Wyndham The piece discusses some enforcement strategies we believe the FTC should use to maximize its effectiveness in improving data security.  Our suggestions include:

  1. Do more proactive enforcement
  2. Take on more data security cases
  3. Push companies toward improved authentication – moving beyond mere passwords
  4. Restrict the use of Social Security numbers for authentication purposes
  5. Develop a theory of data stewardship for third parties

Please check out our essay for our explanation of the above agenda and a lot more detail.

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The FTC Has the Authority to Enforce Data Security: FTC v. Wyndham Worldwide Corp.

Daniel Solove
Founder of TeachPrivacy

FTC 01by Daniel J. Solove

The U.S. Court of Appeals for the 3rd Circuit just affirmed the district court decision in FTC v. Wyndham Worldwide Corp., No. 14-3514 (3rd. Cir. Aug. 24, 2015).  The case involves a challenge by Wyndham to an Federal Trade Commission (FTC) enforcement action emerging out of data breaches at the Wyndham.

Background

Since the mid-1990s, the FTC has been enforcing Section 5 of the FTC Act, 15 U.S.C. § 45, in instances involving privacy and data security.  Section 5 prohibits “unfair or deceptive acts or practices in or affecting commerce.”  Deception and unfairness are two independent bases for FTC enforcement.  During the past 15-20 years, the FTC has brought about 180 enforcement actions, the vast majority of which have settled.  Wyndham was one of the exceptions; instead of settling, it challenged the FTC’s authority to enforce to protect data security as an unfair trade practice.

Among the arguments made by Wyndham, three are most worth focusing on:

FTC PNG 02a(1) Because Congress enacted data security laws to regulate specific industries, Congress didn’t intend for the FTC to be able to regulate data security under the FTC Act.

(2) The FTC is not providing fair notice about the security practices it deems as “unfair” because it is enforcing on a case-by-case basis rather than promulgating a set of specific practices it deems as unfair.

(3) The FTC failed to establish “substantial injury to consumers” as required to enforce for unfairness.

The district court rejected all three of these arguments, and so did the 3rd Circuit Court of Appeals.  Here is a very brief overview of the 3rd Circuit’s reasoning.

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Should the FTC Kill the Password? The Case for Better Authentication

Daniel Solove
Founder of TeachPrivacy

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Co-authored by Professor Woodrow Hartzog.

Authentication presents one of the greatest security challenges organizations face. How do we accurately ensure that people seeking access to accounts or data are actually whom they say they are? People need to be able to access accounts and data conveniently, and access must often be provided remotely, without being able to see or hear the person seeking access.

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Understanding the FTC on Privacy and Security

Daniel Solove
Founder of TeachPrivacy

Privacy Training Blog FTC

by Daniel J. Solove

Privacy Awareness Training Blog TRUSTe FTC WebinarI recently held a webinar about the Federal Trade Commission (FTC) for TRUSTe called Understanding the FTC on Privacy and Security.   The webinar is free and is archived at TRUSTe’s site.

Here is a brief synopsis of the webinar:

For the past nearly two decades, the FTC has risen to become the leading federal agency that regulates privacy and data security. In this webinar, Professor Daniel J. Solove will discuss how the Federal Trade Commission (FTC) is enforcing privacy and data security.  What are the standards that the FTC is developing for privacy and data security?  What sources does the FTC use for the standards it develops?

A common misconception is that the FTC’s jurisprudence has been rather thin, merely focuses on enforcing promises made in privacy policies. To the contrary, a deeper look the FTC’s jurisprudence demonstrates that it is quite thick and has extended far beyond policing promises. The FTC has codified certain norms and best practices and has developed some baseline privacy and security protections. The FTC has laid the foundation for an even more robust law of privacy and data security. Professor Solove will discuss some of the potential ways this body of regulation could develop in the future.

My webinar was written up at the Wall Street Journal.  If you’re interested in seeing it, it’s free and available here.   Below is some background about the FTC as well as some of my writings about the FTC that may be of interest if you want a deeper dive.

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Going Bankrupt with Your Personal Data

Daniel Solove
Founder of TeachPrivacy

title image

By Daniel J. Solove

A recent New York Times article discusses the issue of what happens to your personal data when companies go bankrupt or are sold to other companies:

When sites and apps get acquired or go bankrupt, the consumer data they have amassed may be among the companies’ most valuable assets. And that has created an incentive for some online services to collect vast databases on people without giving them the power to decide which companies, or industries, may end up with their information.

This has long been a problem, and I’m glad to see it receiving some attention.  The issue arose in one of the early FTC cases on privacy about 15 years ago.

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Health Data Security in Crisis, Phase 2 Audits, and Other HIPAA Privacy + Security Updates

Daniel Solove
Founder of TeachPrivacy

title image

By Daniel J. Solove

Co-authored with Professor Paul Schwartz

This post is part of a post series where we round up some of the interesting news and resources we’re finding. We have split the health/HIPAA material from our updates on other topics. To see our updates for other topics, click here.

For a PDF version of this post, and for archived issues of previous posts, click here.

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Facebook Privacy Sherpas, the Internet of Things, and Other Privacy + Security Updates

Daniel Solove
Founder of TeachPrivacy

p+s update image

By Daniel J. Solove and Paul M. Schwartz

This post is co-authored with Professor Paul M. Schwartz.

This post is part of a post series where we round up some of the interesting news and resources we’re finding.

For a PDF version of this post, and for archived issues of previous posts, click here.

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The Worst Password Ever Created

Daniel Solove
Founder of TeachPrivacy

worst password ever created

by Daniel J. Solove

People create some very bad passwords. In the list of the most popular passwords of 2014, all of them are terrible. Just look at the top 10:

  1. 123456
  2. password
  3. 12345
  4. 12345678
  5. Qwerty
  6. 123456789
  7. 1234
  8. baseball
  9. dragon
  10. football

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Should the FTC Be Regulating Privacy and Data Security?

Daniel Solove
Founder of TeachPrivacy

ftc

by Daniel J. Solove

This post was co-authored with Professor Woodrow Hartzog.

This past Tuesday the Federal Trade Commission (FTC) filed a complaint against AT&T for allegedly throttling the Internet of its customers even though they paid for unlimited data plans. This complaint was surprising for many, who thought the Federal Communications Commission (FCC) was the agency that handled such telecommunications issues. Is the FTC supposed to be involved here?

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Who Are the Privacy and Security Cops on the Beat?

Daniel Solove
Founder of TeachPrivacy

privacy and security

law blog 2

by Daniel J. Solove

Are privacy and security laws being enforced effectively? This post is post #3 of a series called Enforcing Privacy and Security Laws.

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Follow Professor Solove on Social Media

Daniel Solove
Founder of TeachPrivacy

If you are interested in privacy and data security issues, there are many great ways Professor Solove can help you stay informed:

Professor Solove’s LinkedIn Influencer blog

LinkedIn Influencer 02 You can follow Professor Solove on his blog at LinkedIn, where he is an “LinkedIn Influencer.”  He blogs about various privacy and data security issues. His blog has more than 600,000 followers.

LinkedIn Influencer 01

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Professor Solove’s Twitter Feed

Twitter 01Professor Solove is active on Twitter and posts links to current privacy and data security stories and new scholarship, cases, and developments of note.

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Professor Solove’s Newsletter

Newsletter 01Sign up for our newsletter where Professor Solove provides information about his recent writings and new training programs that he has created.

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Professor Solove’s LinkedIn Discussion Groups

Please join one or more of Professor Solove’s LinkedIn discussion groups, where you can follow new developments on privacy, data security, HIPAA, and education privacy issues. You can also participate in the discussion, share interesting news and articles, ask questions, or start new conversations:

Privacy and
Data Security
HIPAA Privacy
and Security
Education Privacy
and Data Security
Image Group LinkedIn Logo Education Privacy 01 Image Group LinkedIn Logo HIPAA 01 Image Group LinkedIn Logo Privacy Security 01

How the FTC Can Readily Halt Identity Theft

Daniel Solove
Founder of TeachPrivacy

ftc halts identity theft blog 1

by Daniel J. Solove

Identity theft is terrible crime, and it can wreak havoc on victims’ lives. In an identity theft, the thief uses a victim’s personal information to improperly access accounts, obtain credit in the victim’s name, or impersonate the victim for other purposes.

But there is an effective way to stop a lot of identity theft, and the legal framework is already in place to do it. In a relatively short time, the Federal Trade Commission (FTC) could prevent a significant amount of identity theft – perhaps even a majority of it – and no new laws need to be passed.

I know that it might be hard to believe – as hard to believe as a suitcase filled with a million dollars just sitting abandoned on the sidewalk – but it is quite true.

Before I explain how, I need to provide some background.

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Snapchat and FTC Privacy and Security Consent Orders

Daniel Solove
Founder of TeachPrivacy

snapchat and ftc blog 1

by Daniel J. Solove

Co-authored by Woodrow Hartzog

snapchat and ftc blog 2

The Federal Trade Commission (FTC) recently entered into a consent order with the media service Snapchat for not living up to its promises about how it maintains the privacy and security of user’s data. The FTC order prohibits Snapchat from “misrepresenting the extent to which it maintains the privacy, security, or confidentiality of users’ information” and requires the company “to implement a comprehensive privacy program that will be monitored by an independent privacy professional for the next 20 years.”

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Our Privacy and Data Security Depend Upon Contracts Between Organizations

Daniel Solove
Founder of TeachPrivacy

contracts between organizations blog 1

by Daniel J. Solove

Increasingly, companies, hospitals, schools, and other organizations are using cloud service providers (and also other third party data service providers) to store and process the personal data of their customers, patients, clients, and others. When an entity shares people’s personal data with a cloud service provider, this data is protected in large part through a contract between the organization and the cloud service provider.

In many cases, these contracts fail to contain key protections of data. For example, a study conducted by Fordham School of Law’s Center on Law and Information Policy revealed that contracts between K-12 school districts and cloud service providers lacked essential terms for the protection of student data. I blogged about this study previously here.

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5 Key Quotes from the FTC v. Wyndham Decision on Data Security

Daniel Solove
Founder of TeachPrivacy

5 key points ftc wyndham blog 1

by Daniel J. Solove

This post was co-authored by Professor Woodrow Hartzog.

The long-awaited federal district court opinion in FTC v. Wyndham was finally released last week. The U.S. District Court for the District of New Jersey rejected Wyndham’s arguments that the FTC lacks the authority to regulate unfair data security practices, that the FTC is required to issues rules before bringing an unfair data security complaint, and that the FTC failed to provide fair notice of what constitutes an unfair data security practice.

I blogged about the case here last week.

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One of the Most Important Data Security Cases Was Just Decided: FTC v. Wyndham

Daniel Solove
Founder of TeachPrivacy

ftc wyndham blog post

by Daniel J. Solove

The case has been quite long in the making. The opinion has been eagerly anticipated in privacy and data security circles. Fifteen years of regulatory actions have been hanging in the balance. We have waited and waited for the decision, and yesterday, it finally arrived.

The case is FTC v. Wyndham, and it is round one to the Federal Trade Commission (FTC).

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Duties When Contracting with Data Service Providers

Daniel Solove
Founder of TeachPrivacy

data services blog 1

by Daniel J. Solove

In the world of data protection, it’s an old story: Personal data gets shared with a third party data service provider, and then something goes wrong at the provider.

Whose fault is it? The organization that shared the personal data with the vendor certainly has responsibility, as organizations are generally responsible for the actions of their independent contractors. But even though an organization might have to pick up the tab, it can still put all the blame on the vendor.

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The FTC and the New Common Law of Privacy

Daniel Solove
Founder of TeachPrivacy

Bby Daniel J. Solove

I recently posted a draft of my new article, The FTC and the New Common Law of Privacy (with Professor Woodrow Hartzog).

You can download it for free on SSRN.

One of the great ironies about information privacy law is that the primary regulation of privacy in the United States has barely been studied in a scholarly way. Since the late 1990s, the Federal Trade Commission (FTC) has been enforcing companies’ privacy policies through its authority to police unfair and deceptive trade practices. Despite more than fifteen years of FTC enforcement, there is no meaningful body of judicial decisions to show for it. The cases have nearly all resulted in settlement agreements. Nevertheless, companies look to these agreements to guide their privacy practices. Thus, in practice, FTC privacy jurisprudence has become the broadest and most influential regulating force on information privacy in the United States – more so than nearly any privacy statute and any common law tort.

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New Privacy Training Programs: US, EU, and Global Privacy Law

Daniel Solove
Founder of TeachPrivacy

by Daniel J. Solove

We have launched several new privacy training programs, including a series with brief introductions to privacy law.  We have completed a privacy training program about US Privacy Law with a video and interactive material / quiz questions.  And we just completed a training program about EU Privacy Law.  This program has a 7.5 minute video (as well as an abridged version at 4.5 minutes), and there’s a separate excerpt on the Safe Harbor Arrangement for those who only want to cover Safe Harbor in their training programs.

These programs are illustrated-as-I-talk.  You can preview the European Union Privacy Law video.

Coming soon: Global Privacy Law, which will focus heavily on the OECD Privacy Guidelines and  the APEC Privacy Framework.

European Union Privacy Training