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Abstract

This Note examines website privacy policies in the context of FTC regulation. The relevant portion of Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a), uses the following language to define the scope of the agency's regulatory authority: "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful." Specifically, this Note analyzes the FTC's power to regulate unfair practices (referred to as the FTC's "unfairness power") granted by Section 5, and also discusses the deception prong of Section 5, which allows the agency to regulate and prevent deceptive commercial acts by businesses. This Note argues that, given the prevalence of confusing and obscure data collection practices, the FTC must aggressively interpret its statutory authority in order to effectively protect consumers. By examining three prominent websites--Google, Facebook, and Twitter--this Note demonstrates how some of their practices might be considered unfair toward consumers, in light of the statements set out in their privacy policies. However, the FTC would need to reformulate its policy choices concerning unfairness and pursue a more aggressive regulatory strategy in order to address those potentially unfair practices. Part I of this Note examines the recent history of the FTC and its enforcement powers, including a close analysis of the FTC's policy statements on deception and unfairness and their future implications. In Part II, this Note explores the procedures and challenges of applying the legal standards in deception and unfairness cases. In Part III, the focus turns to Google and its recent decision to create a cross-platform privacy policy. Facebook, the subject of Part IV, remains in the news for privacy violations, despite a history of controversies concerning its handling of user data. Finally, Part V discusses Twitter and the ramifications of the FTC's settlement with the microblogging service--the first case brought against a major social network. In conclusion, this Note examines the likelihood of change in the FTC's approach, the recent attention given toward consumer online privacy by the White House and the FTC, and possible trends in privacy regulation in the near future.

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