Sapientia et Doctrina

Sunday 09th of August 2009 03:56:27 AM

David Vladeck on privacy and the inutility of “notice and consent”

In an interview with NYTimes, David Vladeck, the Director of the FTC Bureau of Consumer Protection, said that he hopes to address the “notice and consent” framework that he considers “no longer sufficient”, as it has resulted in privacy disclosures that are rarely read or understood:

"The first and the more dominant one was what I’ll call the notice and consent framework. The theory was that data collection was OK and uses of that data was OK provided that consumers were on notice that collection activities were taking place, and that consent for the collection and use was secured in some way.

Now, that may have been a sensible framework back then, when it was easier to give notice and consent could be provided or contained in a way where it was clear that the consumer actually knew what she was consenting to, and where there would be a single use of the data or a clear use of the data. Disclosures are now written by lawyers, they’re 17 pages long. I don’t think they’re written principally to communicate information; they’re written defensively. I’m a lawyer, I’ve been practicing law for 33 years. I can’t figure out what the hell these consents mean anymore. And I don’t believe that most consumers either read them, or, if they read them, really understand it. Second of all, consent in the face of these kinds of quote disclosures, I’m not sure that consent really reflects a volitional, knowing act." (Vladeck, 2009)

Mr. Vladeck said the FTC wants to establish new "principles, not prescriptive regulation," which might not be relevant as technology changes (Schatz, 2009):

"Well, we’re not committing ourselves to imposing regulation. Please understand, we don’t view that at the end of this process we’re necessarily going to set down hard and fast markers for industry that must be obeyed. What we would like is to figure out useful tools and a more comprehensive way of looking at privacy protections that may obviate the need for rules." (Vladeck, 2009)

Mr. Vladeck also plans to consider not only economic harm, but also the “dignity interest” that arises in online information collection. (Jacobs, 2009)

Jacobs, A. (2009, August 8). FTC Takes New View of Online Privacy. Retrieved August 8, 2009, from Harvard Journal of Law & Technology Digest:

Schatz, A. (2009, August 5). Regulators Rethink Approach to Online Privacy. Retrieved August 8, 2009, from The Wall Street Journal:

Vladeck, D. (2009, August 3). An Interview With David Vladeck of the F.T.C. (S. Clifford, Interviewer)

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