• by Wendy Davis , Staff Writer @wendyndavis, February 2, 2017

Acting Federal Trade Commission Chair Maureen Ohlhausen suggested today that companies that "misuse" Big Data may act unfairly -- even when they have notified consumers about data collection and allowed them to opt out.

"Misuse of ubiquitous data collection and big data technologies may create concrete privacy harms," she said in a speech delivered to the American Bar Association's Consumer Protection Conference. "I’ve consistently raised concerns that a notice-and-choice approach to privacy may not adequately protect consumers from misuse by companies that assemble bits of non-sensitive consumer information into a potentially sensitive mosaic of a consumer."

At the same time, Ohlhausen made clear that she's not a privacy hawk. She said that enforcement actions under her watch will "address concrete consumer injury," as opposed to "speculative injury" or "subjective types of harm."

"When the FTC has strayed from a focus on actual harm, it has struggled, both in influence and in the courts," she said.

She specifically pointed to the agency's settlement with analytics company Nomi Technologies, which tracks consumers in retail environments.

The FTC alleged in an enforcement action that Nomi failed to adhere to its privacy policy, which said consumers could opt out of retail tracking “at any retailer using Nomi’s technology.”

Despite that language, the company didn't require its retail clients to disclose whether they used the technology; most of its clients failed to do so, according to the FTC.

Ohlhausen reiterated today that she disagreed with the way the agency handled Nomi. "Nomi went beyond its legal obligations by offering a working global 'opt out' for consumers, but had a partially inaccurate privacy policy," she said. "I dissented because we lacked any evidence of consumer harm, and the decision discourages companies from doing any more than the bare minimum on privacy. Such disincentives will ultimately leave consumers worse off."

Ohlhausen added that she aims to "deepen the FTC’s understanding of the economics of privacy," including consumers' preferences as well as the relationship between innovation and companies' access to data about consumers.