Confessions of a Consumer Privacy Ombudsman

• Date: 01 July 2017

Published in Landslide® magazine, Volume 9, Number 6 , a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2017 by the American Bar Association. Reproduced with permission. All rights reserved. This

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CONFESSIONS OF A

CONSUMER PRIVACY

OMBUDSMAN

BY CASSANDRAM. PORTER

First confession: despite earning a privacy credential and

spending my days reviewing data privacy clauses, when

a website asks for my consent to its privacy policy, I

click “agree” and move on.1 Frankly, what’s the point

otherwise? I live in the United States, and if I want to use a

company’s site, the “price of admission” is my consent.

But my freewheeling consent habit occasionally gives

me pause. Not so long ago, I helped nancially distressed

companies (and their creditors) navigate the United States

Bankruptcy Code. For a solvent company, the priority is

upholding applicable privacy law and maintaining good cus-

tomer relations by keeping security breaches to a minimum.

However, for an insolvent company, creditor repayment

becomes the company’s focus by statute, and all other tasks

are prioritized accordingly. Critically, customer data is often

among a debtor’s most valuable assets.2

Customer Data Is a Business Asset

Customer data wasn’t always automatically for sale.3 Pri-

vacy policies regularly promised customers that the company

would never sell, trade, or transfer the customer’s data.

However, this practice changed after the Federal Trade Com-

mission (FTC) intervened in the Toysmart.com chapter 11

case and similar companies’ proposed sales of customer

data.4 The importance of the Toysmart.com chapter 11 case

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