David Vladeck

Since the FTC started to regulate online privacy issues, in the mid-1990s, its focus has been on whether consumers are provided with proper notice about what information may be collected from them and on whether they are given some choice about how it is collected and used. This philosophy was laid out in the Fair Information Practice Principles (FIPs), published in a 1998 FTC report to Congress about Privacy Online. The Bureau of Consumer Protection has traditionally taken the position that as long as consumers are provided with notice through company privacy policies, collection and use of consumer data is acceptable, and that the Bureau should only intervene when a company’s information practices cause concrete, economic harm to consumers.[15][16]

Vladeck has publicly stated that he doesn’t believe this existing model succeeds in protecting consumers’ privacy online.[17] He has advocated a new framework that is broader than just economic interests, and that doesn’t rely solely on privacy policies to protect consumers online.[18] In a recent interview with the New York Times, Vladeck argued that, “I don’t believe that most consumers either read [privacy policies], or, if they read them, really understand it [sic]. Second of all, consent in the face of these kinds of quote disclosures, I’m not sure that consent really reflects a volitional, knowing act.”[19]

Vladeck’s new approach to online privacy can be seen in his handling of FTC litigation against Sears in In the Matter of Sears Holdings Management Corporation. In June 2009, shortly after Vladeck assumed office, the Bureau of Consumer Protection settled a case against Sears. The company had offered consumers $10 to download software that tracked their internet browsing. The software collected information such as medical prescriptions and financial information. The software contained a privacy policy with detailed disclosures about the type of information to be collected and how it would be used, and consumers suffered no economic harm when they downloaded it. Nevertheless, the FTC sued the company for its practice. Vladeck stated that “under the harm framework, we couldn’t have brought that case,” but that because “there’s a huge dignity interest wrapped up in having somebody looking at your financial records when they have no business doing that,” the Commission was justified in suing.[20]

Consumer Advocates have criticized the FTC in recent years for its lack of active regulation of financial services providers – including companies providing and servicing subprime mortgages – in the years leading up to the recent Financial Crisis of 2007-2010. As a recent article in Mother Jones Magazine noted, during the Bush Administration, the FTC “brought an average of one subprime lending case a year (in 2004 and 2005 there weren't any), even as the industry was experiencing record growth and complaints mounted about abusive practices leading to home foreclosures.”[21] David Vladeck intends to crack down on unfair or deceptive practices in the financial services industry. One of his first actions upon becoming director of the Bureau of Consumer Protection was to file a “sweep” of eight new cases (named “Operation Short Change”) against companies engaged in abusive financial practices targeted at individuals hard hit by the economic downturn.[22]

In an October 2009 speech to the National Advertising Division, David Vladeck set forth his plan for the Bureau of Consumer Protection's regulation of advertising and marketing practices under his watch. He stated that the Bureau would have a renewed focus on national advertising, going after large companies that advertise widely and put forth deceptive or unsubstantiated claims, not just small companies perpetrating direct fraud. Vladeck also indicated that the Bureau would particularly focus on food advertising, health claims in advertising, and advertising and marketing practices directed at children.[23]

Additionally, since Vladeck took office, the Bureau has revised its Endorsement Guides, guidelines to advertisers who use endorsements and testimonials.[24] Previously, the guides – which were last revised in 1980 - only required product testimonials claiming exceptional results to have a disclaimer that said “Results Not Typical”. Under the new guidelines, using such testimonials will now require advertisers to “clearly and conspicuously disclose the generally expected results consumers can expect in the depicted circumstances.”[25] The guidelines also – somewhat controversially – require bloggers making an endorsement to disclose their “material connections” to the product’s manufacturer or seller.[26][27]

A positive response to the new rules and laws regarding endorsements and testimonials is an increased level of website compliance standards being adopted that includes the third-party verification of the testimonials businesses present on their websites. These companies, such as testimonialshield.com, collect the data regarding a customer's transaction and experience with a company and with a combined technology and sometimes even personal interviews with the customers to determine the authenticity of the testimonials. Once the testimonials, reviews and/or results are verified, the company can include them in their profiles and add a 'trust mark' similar to that of Verisign, the Better Business Bureau, or Good Housekeeping. The presence of this seal or trust mark helps consumers determine how much weight they should give to the testimonials they are reading before making a decision to support a business.