FTC Gives ‘Opt-In’ Privacy Protection a Boost

Washington —Advocates of an opt-in
regime for personal privacy protection online,
including high-profile Democrats, got a boost
from the Federal Trade
Commission last week
— with an assist from

The FTC and the Obama
Administration have encouraged
the industry
to give Web surfers more
control over the use of
their information, though
they’ve stopped short of
recommending a mandatory
opt-in, rather than
opt-out, approach.

But last week, Web giant
Google accepted an opt-in
condition in its settlement
with the FTC over allegations
it had violated its
own privacy policies in the 2010 launch of social
network Google Buzz, prompting some
legislators to cheer what they hoped would
become standard operating procedure.

As part of the settlement, Google agreed
that it will get the affirmative consent of users
“before sharing their information with
third parties if Google changes its products
or services in a way that results in information
sharing that is contrary to any privacy
promises made when the user’s information
was collected.”

The company said on its blog that Google
Buzz “fell short of our usual standards for
transparency and user control — letting our
users and Google down.” But it said the settlement
had put that all behind it.

Rep. Anna Eshoo (D-Calif.), ranking member
of the House Communications Subcommittee,
was quick to push for the opt-in
policy. “Google’s agreement to obtain consumer
consent before sharing new information
with third parties should apply to all
companies that collect or use personal data,”
she said last week.

Eshoo may have been overstating the case,
as the opt-in policy is triggered by a material
change in information-sharing from a previously
advertised policy, an opt-in variation
short of a blanket opt-in regime.

But at least one of the FTC commissioners,
Republican J. Thomas Rosch, was anticipating
that the condition could
indeed have wider applicability and
could become a way to promote optin
through settlements.

“The ‘opt-in’ requirement … is
seemingly brand new. It does not
echo what Google promised to do
at the outset,” he said, adding that
he was “concerned that it might be
used as leverage in consent negotiations
with other competitors.”

An FTC spokesperson had no

According to the FTC settlement,
when Google launched the site in
2010 through its Gmail product, the
choice of declining to join that social
network or to leave it were ineffective,
and the controls for sharing
info were “confusing and difficult to
find.” The settlement is still subject
to a final vote after public comment.

To settle the charges, Google has also
agreed to adopt a “comprehensive” privacy
program, the first the FTC has ever extracted
in a settlement. That program will be independently
audited for the next 20 years.

Rep. Ed Markey (D-Mass.), co-chairman of
the House privacy caucus, was looking to leverage
that and the opt-in condition into an
industry standard, though he recognized the
opt-in policy was not open-ended.

He said the settlement “should also set a
new, higher standard for other companies to
adopt so that consumers won’t have to sacrifice their privacy when they go online.”

Sen. Jay Rockefeller (D-W.Va.), the Senate
Commerce Committee chairman who
has made online privacy a key issue for
his panel, said the settlement should be a
“wake-up call for online businesses — both
large and small.”

The settlement will be open to public comment
through May 1, after which the FTC
will vote to finalize it.

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.