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.
The 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.
Here is a table of contents of the issue, along with links to where you can access each essay and article.
Debunking Humphrey’s Executor
Daniel A. Crane
83 Geo. Wash. L. Rev. 1835
Looking Ahead: The FTC’s Role in Information Technology Markets
Jeffrey A. Eisenach and Ilene Knable Gotts
83 Geo. Wash. L. Rev. 1876
The FTC’s Study and Advocacy Authority in Its Second Century: A Look Ahead
Andrew I. Gavil
83 Geo. Wash. L. Rev. 1902
Merging Innovation into Antitrust Agency Enforcement of the Clayton Act
Richard J. Gilbert and Hillary Greene
83 Geo. Wash. L. Rev. 1919
Can’t Anyone Here Play This Game? Judging the FTC’s Critics
David A. Hyman and William E. Kovacic
83 Geo. Wash. L. Rev. 1948
It’s Time to Remove the “Mossified” Procedures for FTC Rulemaking
Jeffrey S. Lubbers
83 Geo. Wash. L. Rev. 1979
Weigh the Label, Not the Tractor: What Goes on the Scale in an FTC Unfairness Cost-Benefit Analysis?
Maureen K. Ohlhausen
83 Geo. Wash. L. Rev. 1999
The Rocky Relationship Between the Federal Trade Commission and Administrative Law
Richard J. Pierce, Jr.
83 Geo. Wash. L. Rev. 2026
The FTC: A Framework for Promoting Competition and Protecting Consumers
Chairwoman Edith Ramirez
83 Geo. Wash. L. Rev. 2049
D. Daniel Sokol
83 Geo. Wash. L. Rev. 2064
Charting the Course: The Federal Trade Commission’s Second Hundred Years
David C. Vladeck
83 Geo. Wash. L. Rev. 2101
Stop Chug-a-lug-a-lugin 5 Miles an Hour on Your International Harvester: How Modern Economics Brings the FTC’s Unfairness Analysis Up to Speed with Digital Platforms
Joshua D. Wright and John Yun
83 Geo. Wash. L. Rev. 2130
FTC Consumer Protection at 100: 1970s Redux or Protecting Markets to Protect Consumers?
J. Howard Beales III and Timothy J. Muris
83 Geo. Wash. L. Rev. 2157
The Scope and Potential of FTC Data Protection
Woodrow Hartzog and Daniel J. Solove
83 Geo. Wash. L. Rev. 2230
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. This post was originally posted on his blog at LinkedIn, where Solove is a “LinkedIn Influencer.” His blog has more than 900,000 followers.
Professor Solove is the organizer, along with Paul Schwartz of the Privacy + Security Forum (Oct. 24-26, 2016 in Washington, DC), an annual event that aims to bridge the silos between privacy and security.