A Gaping Hole in Consumer Privacy Protection Law

[Commentary] Recently, the US Court of Appeals for the 9th Circuit issued a decision with profound implications for consumer privacy protection law. In FTC v. AT&T Mobility (9th Cir. Aug. 29, 2016), a 3-judge panel of the 9th Circuit held that the Federal Trade Commission (FTC) lacks jurisdiction over companies that engage in common carrier activity. The result is that there is now a gaping hole in consumer privacy protection law.

Ironically, if this decision isn’t reconsidered and if this hole isn’t patched up, the result will not be a great boon for companies falling outside of FTC regulation. Instead, in the long run, these companies will likely be much worse off. Everybody will lose — consumers and industry. There is nothing good about the 9th Circuit decision, which is foolhardy and naive, the product of abstract musings in the clouds without sufficient consideration of the consequences.

[Daniel Solove is a profess at George Washington University School of Law]