The FTC, the Unfairness Doctrine, and Privacy by Design: New Legal Frontiers in Cybersecurity

Journal of Business & Technology Lawsubsequently settled. 16 As for LabMD, the legal battle goes on. 17 After almost three years of wrangling with the FTC, an administrative law judge granted LabMD dismissal in November 2015, but the Commission later overturned the judge's decision, concluding the administrative action, leaving LabMD with one final shot in a federal appeals court. 18 If the U.S. Eleventh Circuit Court of Appeals, the court that would likely hear LabMD's appeal, takes up the case on the merits, it would be the second major decision on the FTC's unfairness approach, possibly either setting a trend, if the Eleventh Circuit issues a ruling similar to the Third Circuit's in Wyndham, or creating a circuit split if the courts differ.However LabMD turns out, the two cases provide fertile ground for discussing the government's evolving role in policing cybersecurity, and highlights the necessity for businesses that handle or store consumers' personal information to pay very close attention to what the FTC says about privacy and cybersecurity.So what exactly does the FTC expect?This article's contention is that the answer to that question, in a phrase, is "privacy by design."Although it was first introduced by the Commission in a 2010 privacy report, privacy by design, or PbD, was created by the former privacy commissioner of the province of Ontario in Canada, and dates back to the mid-1990s. 19 Generally speaking, PbD is an admonition that entities think about privacy holistically; to imbed it not only in the processes and procedures of the enterprise, but to broadly socialize the concept so that it becomes part of the organizational DNA.Historically, privacy had been considered as presenting some intellectually interesting issues, but organizationally was much less of a priority: a "nice to have," but not a "need to have."Indeed, the very concept of a "Chief Privacy Officer" ("CPO") only started becoming more commonly accepted within the past ten to fifteen years, 20 and even to this day, despite the need, frequently remains less visible and more marginalized within the organization or may not even exist at all. 21

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