Advertising Law Blog

President Barack Obama has appointed FTC Commissioner Jon Leibowitz as the Chairman of the Commission. The appointment, which does not require Senate confirmation because he is a sitting Commissioner, is expected to bring about a significant increase in the FTC's enforcement activities, particularly in the area of online advertising and privacy protection. For a brief biography on the career of FTC Chairman Jon Leibowitz, click here.

Throughout his career with the FTC, Leibowitz has been an outspoken consumer advocate and has urged industries to take consumer protection seriously behind the threat of stricter Government regulation. For example, in February 2009, the FTC issued a Staff Report on "Self Regulatory Principles for Online Behavioral Advertising" that proposed principles which online advertisers conducting behavioral advertising should adhere to. Online behavioral advertising is the practice of collecting information on the Internet surfing habits of a user, and personalizing ad content for the user based on the user's surfing habits. The FTC report discussed the pros and cons of the practice, with particular emphasis on the privacy implications of the data collection practices. The FTC went on to recommend guiding principles that the self-regulated internet advertising industry should respect (complete report available here). There, Leibowitz, in a concurring statement wrote, "Industry needs to do a better job of meaningful, rigorous self-regulation or it will certainly invite legislation by Congress and a more regulatory approach by our Commission." Notably, Leibowitz favors an "opt in" approach to data collection, which would ask consumer permission before collecting behavioral information, as opposed to the "opt out" option that is more regularly provided, which requires an affirmative action by the consumer to prevent data collection (complete concurring statement available here).

Leibowitz has taken similar favorable stances toward heightened consumer protection in enforcement actions. His aggressive stance has led many insiders to anticipate that a Leibowitz-headed FTC will be a more aggressive FTC, pushing for more regulation and stiffer monetary payments for offenders. For more information about FTC enforcement actions, click here.

If Leibowitz' prior statements are any indication of things to come then the online advertising industry, among others, should prepare themselves for an increasingly aggressive FTC.