Businesses that think they know what privacy issues are on the minds of the state attorneys general (AGs) should be aware that AGs are being urged to take action, either on their own, or in concert with the FTC, on key cutting edge privacy issues. At a major meeting of state AGs this week at the Conference of Western Attorneys General, FTC Commissioner Julie Brill, one of the highlighted speakers at the event, emphasized the importance of the AGs’ role in privacy regulation, and encouraged AGs to collaborate and cooperate on privacy investigations consistent with FTC efforts.
Commissioner Brill, a former assistant AG in two influential state attorney general offices, Vermont and North Carolina, outlined for the AGs several high-level privacy priorities for the FTC, including: (1) user-generated health information; (2) the Internet of Things; and, (3) mobile payments and mobile security. She invited the states to follow these and other privacy issues, and to complement the FTC’s actions in these areas in appropriate ways.
Also a focus: the Commission’s “Big Data” data broker report. Commissioner Brill emphasized her concerns about data broker practices, including their use of terms to describe and categorize individuals, such as “Urban Scramble,” “Mobile Mixers,” “Rural Everlasting,” and “Married Sophisticates.” She stressed that the information gathered by data brokers about these groups may allow businesses to make inferences about people, which in turn could impact access to credit, and in other ways. She pointed out that the FTC unanimously called for legislation to increase transparency and provide consumers with meaningful choices about how their data is used.
Building on her comments about data brokers, Commissioner Brill voiced concerns about the United States’ sectoral approach to privacy law and stressed that there needs to be gap-filling in areas outside of those sector-specific laws, and, since Congress is focused elsewhere on privacy issues, state action may be the best option to take on these issues and fill the gaps. This is not the first time Commissioner Brill has called on the states to take decisive action, and it won’t be the last.
Finally, Commissioner Brill addressed the FTC’s case against Wyndham in particular, noting that the FTC is aggressively fighting challenges to its Section 5 authority. She reminded the states that they have an interest in this fight given that state UDAP statutes share a common blueprint as so-called “mini-FTC Acts,” and invited collaboration on future challenges.
It is likely that many of the states will take action consistent with Commissioner Brill's urging.