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• comment peter • Jul 31, 2014

  thanks for your thinking on this topic which is in effect highlighting the need to evolve from current privacy protection models to a framework that focuses more on the "use" of data. There has been a lot of work on what this model might look like and is featured at http://www.microsoft.com/en-us/twc/privacy/models.aspx. You raise an interesting question re should the FTC in applying its unfairness authority in this way, do so through general rules promulgated in advance? Since, as you note it is about the use of data and data cane be used for benefit and potential harm. It is our view that the process to assess the risks and potential harms needs to be developed in an open and transparent way, not just through the FTC but globally. As one of the recommendations covers, "Assessing and managing the risks presented by personal data require a clear understanding of what constitutes “harm” and of other undesired consequences in the privacy context. A framework of recognized harms is critical to ensuring that individuals are protected and to enhancing predictability, accountability, and efficiency.
  National data protection authorities are well placed to help lead a transparent, inclusive process to articulate that framework. The goal should not be to mandate a one-size-fits all approach to risk analysis, but rather to provide a useful, practical framework to ensure that a wide range of interests and constituencies are involved in crafting it and to highlight measures for reducing risk.". 
  
  I think the FTC is well suited for this work.