This book has explored the FTC's consumer protection history, analyzed its powers, and examined how the Agency has regulated privacy in six different contexts. This exploration has focused on the FTC as an institution as much as it has canvassed privacy. This concluding chapter considers what the FTC must do in order to continue to police privacy credibly and effectively. It focuses on recommendations that both strengthen the Agency and help it address privacy. Congress envisioned the FTC to prevent unfair and deceptive practices. To meet this mandate, the FTC must understand the logic of the information industry and the urgency for quick action.

THE FTC HAS TO SHARE THE RESPONSIBILITY TO PROTECT PRIVACY

This section gives an overview of the privacy challenge facing modern society and then turns to whether the FTC's jurisdiction, tools, and internal components are sufficient to police privacy rights.

The privacy challenge

We stand at a technological precipice brought on by information-intensive firms. The transfer of power to information-intensive companies over the past twenty years is difficult to understand. Contemplate for a moment that we have, in a generation, transferred our communications from the mails and telephones, which were protected from snooping by statute and the Constitution, to privately owned and operated electronic systems. Electronic systems have privacy deficits in law. Some electronic service providers are dependent on the assumption that it is acceptable to read others’ communications, in order to target advertisements or to improve other services offered by the company. Such monitoring was both illegal and impracticable with the mails and the telephone. Electronic systems also have serious technical faults, as most online communications are transferred in a format that is equivalent to a postcard and readable by anyone. With the weakening of legal and technical protections for communications, we have also seen a change in norms. Many enterprises have inculcated the idea that surveillance of once-impossible-to-monitor communications is necessary for these convenient technologies to work. But this is not always true.

The change from analog to digital enabled previously impracticable national security surveillance regimes and has enhanced the ability of all levels of law enforcement to monitor social activity. The change also shifted the dynamics of private-sector power and surveillance. A century ago, extortionists could fabricate stories of illegal behavior or snoop on people to blackmail others.