FTC Commissioner Brill Uses Snowden to Expand Privacy Debate

In a June 26th address to the 23rd Computers Freedom and Privacy Conference, FTC Commissioner Julie Brill seized on the Snowden scandal as a means to take the offensive on this issue.  For Brill this means:

  • launching her campaign for “Reclaim Your Name” under which consumers can learn what information is collected about them; and
  • linking it with “Do Not Track” as a two-pronged response to Big Data.

Brill’s speech apparently blind slided the Direct Marketing Association on this speech, who believed her call for regulation of data brokers was premature given that the FTC was in the middle of investigating the matter.

Brill on Snowden and Big Data:

We don’t have to pass judgment on the NSA or Snowden to acknowledge the disclosures have sparked a necessary and overdue debate on how to balance national security against citizens’ privacy rights. For those of us who have been looking at the issue of privacy in the Internet age for several years, there is a further benefit: Americans are now more aware than ever of how much their personal data is free-floating in cyberspace, ripe for any data miner – government or otherwise – to collect, use, package, and sell.

Many consumers have been loath to examine too closely the price we pay, in terms of forfeiting control of our personal data, for all the convenience, communication, and fun of a free-ranging and mostly free cyberspace. . . .  We send our digital information out into cyberspace and get back access to the magic of our wired lives. We sense this, but it took Snowden to make concrete what exactly the exchange means – that firms or governments or individuals, without our knowledge or consent, and often in surprising ways, may amass private information about us to use in a manner we don’t expect or understand and to which we have not explicitly agreed. 

It is disconcerting to face how much of our privacy we have already forfeited.  But with that knowledge comes power – the power to review, this time with eyes wide open, what privacy means – or should mean – in the age of the Internet. I believe that’s what President Obama meant last week when he called for a “national conversation…about the general problem of these big data sets because this is not going to be restricted to government entities.”


(1) Privacy by Design

So let’s turn to some ways to solve the challenges big data poses to meaningful notice and choice as well as transparency. A part of the solution will be for companies to build more privacy protections into their products and services, what we at the FTC call “privacy by design”. We have recommended that companies engage in cradle-to-grave review of consumer data as it flows through their servers, perform risk assessments, and minimize and deidentify data wherever possible.

(2) Reclaim Your Name

Changing the law would help. I support legislation that would require data brokers to provide notice, access, and correction rights to consumers scaled to the sensitivity and use of the data at issue. For example, Congress should require data brokers to give consumers the ability to access their information and correct it when it is used for eligibility determinations, and the ability to opt-out of information used for marketing.

But we can begin to address consumers’ loss of control over their most private and sensitive information even before legislation is enacted. I would suggest we need a comprehensive initiative – one I am calling “Reclaim Your Name.” Reclaim Your Name would give consumers the knowledge and the technological tools to reassert some control over their personal data – to be the ones to decide how much to share, with whom, and for what purpose – to reclaim their names.

Reclaim Your Name would empower the consumer to find out how brokers are collecting and using data; give her access to information that data brokers have amassed about her; allow her to opt-out if she learns a data broker is selling her information for marketing purposes; and provide her the opportunity to correct errors in information used for substantive decisions – like credit, insurance, employment, and other benefits.

(3) Do Not Track

The Reclaim Your Name initiative meshes nicely with the FTC’s ongoing interest in a universal, simple, persistent, and effective Do Not Track mechanism that allows a
consumer to stop companies from mining cyberspace for information about her for marketing purposes.

If consensus is reached, Do Not Track would allow consumers to choose when their online data is monitored for marketing purposes. Reclaim Your Name would give consumers the power to access online and offline data already collected, exercise some choice over how their data will be used in the commercial sphere, and correct any errors in information being used by those making decisions materially impacting consumers’ lives. Together, these policies will restore consumers’ rights to privacy that big data has not just challenged but has abrogated in too many instances.



And perhaps therein lies the biggest challenge of big data: it is taking advantage of us without our permission. Often without consent or warning, and sometimes in completely surprising ways, big data analysts are tracking our every click and purchase, examining them to determine exactly who we are – establishing our name, good or otherwise – and retaining the information in dossiers that we know nothing about, much less consent to.

There is no reason that big data cannot coexist with an effective Do Not Track mechanism and with a system that empowers consumers to make real choices about how their private information will be used. The ability to claim your name – or in the case of big data, Reclaim Your Name – is as American as Mom and apple pie. I can’t believe  consumers will give that up easily, even for all the convenience, entertainment and wonder that cyberspace currently has on offer. And I want to believe that industries currently fueled by big data will join together to help consumers reclaim their names.