Deception and Privacy, Materiality and Economics


  1. Yesterday, FTC Commissioner Josh Wright gave a speech at the Chamber of Commerce presenting "do's and don'ts" for regulating the emerging Internet of Things. As he has highlighted in previous dissenting opinions at the Commission, Wright has charged that the FTC has embraced a "generalized fear of data" rather than sound economic and empirical analysis in its privacy decisions and recommendations.
  2. This debate, or perhaps interplay, between privacy and economics is interesting. On one hand, it may provide a firm dollars-and-cents foundation to the FTC's privacy work at the cost of years of prior "privacy caselaw" at the Commission.
  3. At the same time, weighing economic surplus against privacy may means that privacy is a net loser. This also may depend upon who is doing the weighing. Professor Peter Swire, for example, has suggested that those trained in economics are much less likely to value privacy protection than those with different training, e.g., the lawyers.
  4. A late-night Twitter conversation between Justin Brookman from CDT and Adam Thierer from the Mercatus Center at least suggests there is a compelling conversation to be had here:
  5. Considering the Commissioners have been going back-and-forth in their statements on this subject, I would love to hear Commissioner Brill's response, and perhaps see her and Commissioner Wright have a public conversation on the correct approach to privacy regulation. Barring that, perhaps Justin and Adam can act as proxies?