What the Vizio Case May Portend About FTC Privacy Enforcement

by Jeff Sovern

The FTC, New Jersey AG's Office, and Vizio have agreed to a court order under which Vizio will pay 2.2 million to settle charges that Vizio recorded and sold information about the viewing practices of consumers watching Vizio TVs without obtaining consumers' consent and without their knowledge.  You can read Leslie Fair's blog post about the case here. In what is probably a sign for future FTC privacy enforcement, Commissioner Maureen K. Ohlhausen, who was recently named Acting FTC Chair by President Trump, concurred in the Commission's decision on the ground that the conduct was deceptive, but expressed concern about the determination that the conduct was also unfair within the meaning of the FTC Act.  Chair Ohlhausen wrote (footnotes omitted): 

[U]nder our statute, we cannot find a practice unfair based primarily on public policy. Instead, we must determine whether the practice causes substantial injury that is not reasonably avoidable by the consumer and is not outweighed by benefits to competition or consumers.

This case demonstrates the need for the FTC to examine more rigorously what constitutes "substantial injury" in the context of information about consumers. In the coming weeks I will launch an effort to examine this important issue further.

She does not go so far as to say it is not a substantial injury, but I would have thought it obvious that it is without much reflection. I hope this does not foreshadow reduced privacy enforcement at the FTC. The Chair notes that the Commission has previously held "precise geolocation information" to be sensitive.  I suspect many consumers would find their TV viewing just as, if not more sensitive, than their location. 

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