District of Columbia
A Preliminary FTC Staff Report on "Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Businesses and Policymakers"
This comment is submitted to support the FTC staff's recommendation for a "Do Not Track" mechanism to allow consumers to opt out of the collection of information about their internet behavior for targeted advertising. In particular, I wish to respond to the lengthy criticism of this FTC proosal that appears in "Will the FTC's 'Do Not Track' Proposal Spell the End of Free Internet Content," 79 USLW 2023 (February 23, 2011). The central thesis of the criticism is that internet rules should mirror the rules that apply to the rest of the world, that an "individual's right to privacy generally ends ... when she chooses to venture out where she may be easily observed or overheard, or chooses to disclose information to third parties", and that "Few would argue ... that an individual who enters a brick and mortar location should have the legal right to prohibit the owner from observing them, monitoring their movements within the building, or offering purchase suggestions." [79 USLW at 2025] This criticism is ill-considered. I respectfully submit that: Few would expect that by entering a brick and mortar store, an individual thereby confers a "right" upon the store owner to pester the individual forever thereafter (after the individual leaves the store) with advertisements and offers sent by mail and email to the individual's home. Cf. Pineda v. Williams-Sonoma Stores, Inc. (California Supreme Court February 10, 2011) (court holds that retail stores may not request and record a consumer's zip code as part of a credit card transaction, enforcing Cal.Civil Code s1747.08 that prohibits businesses from retaining cardholders' "personal identification information" to use for later marketing purposes). See generally Bamberger & Mulligan, Privacy on the Books and on the Ground, 63 Stanford L.Rev. 249 at 283, 301-302 (January 2011) (consumer "push back" has led many companies (e.g., AOL, American Express, Intel, DoubleClick) to scrap internet data mining and marketing schemes that invaded personal privacy). Three cheers for the FTC's proposed "Do Not Track" mechansm!