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80 Antitrust L.J. 121 (2015-2016)
Competition, Consumer Protection, and the Right [Approach] to Privacy

handle is hein.journals/antil80 and id is 127 raw text is: COMPETITION, CONSUMER PROTECTION, AND THE RIGHT [APPROACH] TO PRIVACY MAUREEN K. OHLHAUSEN ALEXANDER P. OKULIAR* Many people view Samuel Warren and Louis Brandeis's 1890 work, The Right to Privacy,1 as the starting point for the consumer privacy laws in the United States. Alarmed that [i]nstantaneous photographs and newspaper en- terprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the house-tops,' they argued for the right to prevent invasions of privacy by the press, particularly by photographers, and to be let alone.'2 Noting the protections for private letters and for works of art and literature, which they characterize as a gen- eral right to privacy for thoughts, emotions, and sensations, Warren and Brandeis asserted these should receive the same protection, whether ex- pressed in writing, or in conduct, in conversation, in attitudes, or in facial expression.3 Warren and Brandeis's concerns about the ability of technology to invade the private sphere continue to resonate today, 125 years later. The technology encroaching on privacy now is, of course, the Internet-or, to be more pre- cise, the technologies that permit the tracking and aggregation of individual consumers' online behavior and that support the many services that finan- cially sustain the broader Internet ecosystem. These technologies also facili- tate the advent of big data-a term used to describe the collection, storage, and analysis of datasets that have large volume, significant variety, and high velocity, sometimes fed by the melding of online and offline data. * The authors are, respectively, Commissioner and Attorney Advisor to Commissioner Ohlhausen, Federal Trade Commission. The views expressed herein are those of the authors alone and do not represent the views of the FTC or any other Commissioner. I Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890). 2 Id. at 195. 3 Id. at 206.