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Former FTC Official Reflects on Developments in Privacy, the Move to Federal Court


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Former FTC Official Reflects on Developments in Privacy, the Move to Federal Court

By uriasc

The development of privacy as a priority area in the Federal Trade Commission and the move by the FTC to file claims in federal courts are two of the biggest developments Joan Bernstein, a former FTC director of the Bureau of Consumer Protection, saw during her tenure there. Bernstein, in a recent issue of Antitrust, reflected on these changes. Following is a summary of her comments:

  1. Privacy. When Bernstein was appointed the director of the Bureau of Consumer Protection in 1995, the Internet was just beginning its commercial development, and consumer involvement on the Web was limited. Issues of data collection, information sharing and privacy on the Web were barely in the public consciousness.

    Today privacy as a field of practice is booming. Bernstein sees companies searching for qualified chief privacy officers, and such positions now often require not only a comprehensive understanding of frequently changing U.S. and international laws but also an understanding of how to explain corporate privacy policies to consumers, shareholders, boards of directors and journalists. It is rare to see a new C-suite position develop in such a short period of time, according to Bernstein, but it has certainly been the result of privacy emerging as a common and important theme in life.

    Bernstein says that looking forward, it is hard to imagine privacy as a field becoming less important. Instead, she says new organizations are springing up that are dedicated to training practitioners, to representing the public interest and to shaping developing legislation. Consumer interest in privacy also continues to be high — for example, a 2011 survey by TRUSTe found that 94 percent of consumers ranked Internet privacy as a very or somewhat important issue to them.

  2. Federal courts. Until the mid-1990s, the FTC rarely brought nonfraud cases in federal court; the bureau, supported by the commission, relied primarily on administrative filings. But administrative filings had become a slow process. For example, challenged advertising campaigns were long gone when the final decision ordered them stopped.

    As bureau director, Bernstein says she encouraged staff to begin thinking about exercising its ability to bring more cases in federal court. By doing so, she says the bureau was able to challenge new and proliferating advertising and marketing practices and obtain injunctive relief in federal court.

    As a result of this development, the bureau has developed a closer working relationship with the Department of Justice, which acts as the FTC’s attorney when the bureau is proceeding in federal court. Bernstein says it has been a welcome relationship, one that brings additional rigor and resources to the enforcement process.

In short, she says, the FTC’s focus on developing substantive law of privacy under existing authority and implementing it and other consumer protection initiatives in both administrative and federal court has vastly expanded consumer protection in national legal practice. In fact, says Bernstein, consumer protection practice has emerged with such depth and breadth that some say it has or soon will overtake antitrust’s dominance of the practice — a profound and surely unanticipated shift affecting the practice of law.