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CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
The FTC’s authority to act on privacy was unsuccessfully challenged in F.T.C. v. Wyndham
Worldwide Corp.
The FTC’s authority is broad and flexible and applies to both cybersecurity
and misleading privacy policies.
The FTC currently does not use broad rulemaking authority and organizations rely on a
common law of FTC enforcement actions as guidelines.
The FTC also publishes guides, such as
Start with Security: A Guide for Business.
Further, the FTC does not levy fines immediately on
privacy enforcement actions. They first negotiate a consent order, and if they are unable to do so,
then litigate against an organization.
The ability to fine an organization at the beginning could
be an effective deterrent.
2. COPPA
The Children’s Online Privacy Protection Act (COPPA) was passed in 1998.
COPPA
requires that sites which gather private information on children under the age of thirteen must
follow certain rules. For example, any gathering of personally identifiable information (PII) of a
child under thirteen years of age requires “verifiable parental consent.”
No more information
will be gathered than necessary and the child’s participation in a game will not be conditioned
F.T.C. v. Wyndham Worldwide Corp., 799 F.3d 236, 249 (3d Cir. 2015).
See Michael Scully & Cobun Keegan, IAPP Guide to FTC Privacy Enforcement, IAPP,
https://iapp.org/media/pdf/resource_center/Scully-FTC-Remedies2017.pdf (last visited Mar. 12, 2019).
Start with Security: A Guide for Business, FTC (June 2015), https://www.ftc.gov/system/files/documents/plain-
language/pdf0205-startwithsecurity.pdf.
See Michael Scully & Cobun Keegan, IAPP Guide to FTC Privacy Enforcement, IAPP,
https://iapp.org/media/pdf/resource_center/Scully-FTC-Remedies2017.pdf (last visited Mar. 12, 2019).
15 U.S.C. § 6502 (b)(1)(A)(ii).