Safe Internet Alliance

Speaking during a Monday FTC roundtable discussion "to explore the privacy challenges posed by the vast array of 21st century technology and business practices that collect and use consumer data," Chairman Jon Leibowitz credited Louis Brandeis, a Supreme Court justice from the early 20th century, as one of the original thinkers on contemporary philosophy on privacy . Specifically, he referenced a quote from a seminal law review article titled "The Right to Privacy," in which Brandeis wrote, "numerous mechanical devices threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the house-tops.'"

In that article, Brandeis was specifically referring to photography and journalism, but Leibowitz argued that those words were especially prescient for today's world, one in which a simple tag on Facebook propels a picture into the newsfeed of hundreds of your friends and family.

"It was enormously influential and helped shape jurisprudence on privacy," said Leibowitz. "His thinking on the Supreme Court, that the right to be let alone was the most sacred of rights, really took hold in the 1960s, when people lost faith in government and it created more fervent concern over privacy rights."

The Chairman said that this is "another watershed moment in privacy," and that "the time is ripe for the Commission to take a broader look at privacy." He particularly singled out the advent of cloud computing, which allows vast amounts of user data to be stored cheaply and efficiently, as a potential segment to be watched more closely.

"These developments have allowed companies to collect data about consumers that they've never been able to before," he said. "For instance, behavioral targeting, where consumer IP addresses are used to determine whether a person is more likely to respond to a particular ad. Yes, it creates more relevant advertising, but also costs in terms of privacy. These technologies have fundamentally changed the privacy landscape in a way that Justice Brandeis would never have imagined."

Leibowitz admitted that so far the Commission's policies "haven't worked quite as well as we would like," but he called to mind Winston Churchill's definition of democracy: "It has been said that democracy is the worst form of government except all the others that have been tried."

"We all agree that consumers don't read privacy policies," he said. "Is there an easier way to protect privacy that businesses can understand and apply? A unified standard of privacy? Should we utilize more opt in? Should we treat special categories of information such as personal health records differently? and how do we treat vulnerable categories of consumers like children? We hope we'll find out over the next six months."