FTC Competition Bureau Approves Privacy Self-Regulatory Program

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The Council of Better Business Bureaus (CBBB) has received a green light from the FTC’s Bureau of Competition for the CBBB’s “Self-Regulatory Principles for Online Behavioral Advertising (OBA),” drafted by a coalition of industry associations. http://www.ftc.gov/os/2011/08/100815cbbbletter.pdf The Principles, administered by the Digital Advertising Alliance, require transparency about the information collected and are intended to give consumers control over whether and how their information is used.  The issue presented to the FTC by the CBBB was whether the accountability program would be viewed as a restraint of trade under the antitrust laws because of the collaboration of businesses in developing and enforcing the standards.

An advisory opinion letter from the FTC determined that accountability program “is intended to increase transparency and consumer control of OBA, which has the potential to increase consumer welfare, and there appears to be little or no potential for competitive harm associated with the proposed accountability program.”   The FTC still could object in the future if the principles as applied were used to limit competition rather than simply promote consumer welfare.

Notably, the  advisory opinion stated that it “is limited to the competition law analysis requested by the CBBB and does not address the adequacy or appropriateness of the industry self-regulatory principles or their administration.”  Translation:  “We don’t speak for our Bureau of Consumer Protection colleagues on the adequacy of the self-regulatory program from a privacy perspective.”