It’s fair to say FTC Commissioner Thomas Rosch will continue objecting...

rental providers and a software firm alleged to have spied on customers in their homes through keylogging, screen captures and webcams (CD Sept 26 p16). Congressional Privacy Caucus Co-Chair Rep. Joe Barton, R-Texas, Wednesday said he was “dumbfounded” by the spying allegations. (See separate report below.) Rosch also dissented from a summer settlement with the Wyndham Hotels chain over an unfairness provision. The commissioner Wednesday pointed us to his speech to the Forum for EU-US Legal Eco Affairs in Paris Sept. 14, on “The Evolution of ‘Privacy Policy’ at the Federal Trade Commission: Is It Really Necessary?” In the speech (http://xrl.us/bnrijc) Rosch said he “bridled” at the FTC’s preliminary staff privacy report in 2010 (http://xrl.us/bnrije) that, among other things, “suggested that ‘notice’ might be replaced by a new and untested paradigm based on ‘unfairness.'” The final staff report’s insistence that the “unfair” prong of the commission’s Section 5 authority should govern information collection practices, rather than the “deceptive” prong, was Rosch’s “primary” disagreement with the report, he wrote. “What is ‘unfair’ is in the eye of the beholder,” with “most consumer advocacy groups” judging behavioral tracking to be unfair regardless of whether such tracked information is personally identifiable or what the circumstances are for the tracking. Yet consumers “by and large do not ‘opt out’ from tracking when given the chance to do so,” he said. The FTC largely sided with consumer advocacy organizations, contrary to its statements to Congress in 1980 and 1982 (http://xrl.us/bnrikq) that “absent deception,” the commission “will not generally enforce Section 5 against alleged intangible harm,” Rosch said. The FTC historically has also not “tethered itself to the policy judgments of other regimes about consumer privacy,” he said, referring to the final privacy report’s recommendation that the U.S. align itself with Asia-Pacific Economic Cooperation and Organisation for Economic Co-operation and Development principles. The guiding principle of FTC privacy policy thus far has been that it consider “innovation” and that other regimes should do the same, he said. By applying Section 5 authority beyond prescribed limits -- “on a standalone basis only to a firm with monopoly or near-monopoly power” -- the FTC could enable the abuse of privacy “as a weapon by firms having monopoly or near-monopoly power to disadvantage rivals,” Rosch said in the speech.