affirmative consent

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Facebook recently agreed to settle charges by the Federal Trade Commission (FTC) that Facebook violated the FTC Act. The FTC-Facebook settlement, which is still subject to final FTC approval, prohibits Facebook from making misrepresentations about the privacy or security of its users’ personal information, requires Facebook to obtain users’ affirmative consent before enacting changes that override the users’ privacy preferences, and requires Facebook to prevent anyone from accessing material posted by a user more than 30 days after such user deleted his or her account. Similar to the March 2011 FTC-Google settlement, the Facebook settlement requires that Facebook enact a comprehensive privacy program and not misrepresent its compliance with the US-EU Safe Harbor Principles. As we previously reported, these two requirements are relatively new FTC settlement terms, which were first used in March 2011.
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Behavioral tracking of consumers online in order to deliver relevant advertising is a privacy issue that is receiving a lot of attention, and one that has been the focus of Federal Trade Commission and consumer group scrutiny. On September 25th, the United States Senate Commerce Committee held a hearing on online privacy and received commitments from the three industry representatives (from AT&T, Verizon and Time Warner Cable) that if they do deploy technologies that are able to track consumer online behavior in order to tailor advertising, that consumers will have clear notice and a full opportunity to provide affirmative consent. None of the companies currently use such technologies in their roles as Internet Service Providers. The broadband providers challenged the rest of the online industry, including web site operators and application providers such as Google, to provide the same protections to consumers. Essentially, the witnesses called for an end to “opt out” when it comes to online advertising.
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