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Commissioner Brill and privacy 3.0 at the CWAG privacy panel – Updated

Chris Hoofnagle, professor of law in residence | July 21, 2010

Important update included below

I had the honor of appearing with Attorney General Rob McKenna (WA), FTC Commissioner Julie Brill, AAG Shannon Smith (WA) and Professor Paul Ohm (University of Colorado Law School) at the annual meeting of the Conference of the Western Attorneys General. The video is now available. A summary of my presentation is here.

Far more important, however, was the discussion by Commissioner Brill on behavioral advertising and what the Federal Trade Commission should do to address it. The Commissioner explained that the FTC has undergone two stages of privacy approaches: privacy 1.0, the notice and choice approach, which relied upon fair information practices to address privacy; and privacy 2.0, the harm model which arose under the leadership of former Chairman Muris. She described the need for a privacy 3.0 to address the problem of behavioral advertising, because consumers do not understand the complicated decision making present in the background of interest-based advertising.

What will be in privacy 3.0? Brill gave some clues:

  • Privacy 3.0 will not make distinctions between PII and non-PII I overstated this. Commissioner Brill did not say that there would be no difference; she said that the FTC has realized that the difference between PII and non-PII is blurry. Approaches therefore, will not be as dependent on the PII distinction as current privacy laws are.
  • Privacy 3.0 will recognize that notice and choice was not enough, and emphasize “just in time” notices. That is, warnings that privacy is implicated at the time when consumers are taking steps that might result in new data collection or uses
  • Privacy 3.0 would benefit from simple, universal icons that signal important issues to users
  • Privacy 3.0 will focus on giving users notice of unexpected uses. Everyone expects to give users’ addresses to UPS in order to deliver a package. According to Brill, notices instead should focus upon highlighting other uses that might surprise the user

Stay tuned. In the next year, we’re likely to see significant public policy advances on online advertising.