Is the FTC “Moving to a Post-Disclosure Era” for Online Consumer Privacy?

Is the FTC moving to a "Post-Disclosure Era," in which consumer online privacy would be regulated in a radically different manner than the status quo?  That was a suggestion made by the chairman of the FTC, Jon Leibowitz, and David Vladeck, chief of the FTC’s Bureau of Consumer Protection, during a recent on-the-record discussion about online privacy, reported in the New York Times

For some time, I have been asking the question, "Is Consent Dead, and Should We Even Care?"  Now it appears the FTC is asking the very same question.  According to FTC Chair Leibowitz, companies “haven’t given [online] consumers effective notice, so they can make effective choices” about the privacy of their online information.  Mr. Vladeck similarly views traditional advise-and-consent privacy notice models as dependent upon “the fiction that people were meaningfully giving consent.  The literature is clear” that few people read privacy policies.

What, if anything, will this new way of thinking mean in terms of future regulation of consumer online privacy by the FTC?  More information may be forthcoming at the FTC’s next privacy roundtable, to be held on January 28 (and available to the public via webcast).

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