Leibowitz was assiduous in his pursuit of what he saw as overstepping by companies engaged in consumer data collection. His language could be inflammatory, as when he said in 2009 that "a day of reckoning may be fast approaching" for online advertising.
Four years later, it seems he was wrong.
Leibowitz was said to have wanted strong forward movement on Do Not Track by the end of December, either through the creation of clear industry tech specs or legislation prior to the end of the 112th Congress.
Neither has happened. DNT remains stuck in self-regulatory mire. (Even the definition of "tracking" is still being debated by members of a Worldwide Web Consortium working group charged with building the browser spec). And the Congress has now turned over, creating new centers of gravity on the privacy issue. (The FTC's makeup also has changed. Republican Commissioner Thomas Rosch stepped down and was replaced by another Republican, Joshua Wright).
Additionally, the rise of mobile device usage threatens to topple the Do Not Track regime as it was originally conceived. A location privacy bill authored by Minnesota Sen. Al Franken earned approval from the important Senate Judiciary Committee in December, and it's increasingly hard to imagine a tracking opt-out system that doesn't take into account mobile app and browser usage.
Another high profile initiative in recent years was the FTC's long running anti-trust investigation of Google, which was resolved in the search giant's favor last month. That was seen by many as a defeat for Leibowitz and a waste of time for the agency he led (although the FTC hastened to point out it extracted concessions from Google on patent practices.)
After the investigation concluded, Forbes lambasted the FTC’s decision to investigate at all: “It took the FTC 20 months to determine its investigation was largely fruitless. Twenty months is nearly a full generation of technology development in the Internet industry."
To Leibowitz's credit, he understood that technology had significantly accelerated consumer data collection for marketing purposes, and he tried to get in front of that trend from a consumer protection standpoint. Do Not Track was only one part of a big privacy framework spearheaded by the FTC that sought to establish strong self-regulatory principles for all business. The three tenets of that report, issued in 2010, were "privacy by design, greater transparency, and more consumer choice."
And the FTC under Leibowitz did successfully tackle what it saw as transgressive data collection practices and deceptive digital ad tactics. To name just a few:
- In 2008 (when Leibowitz was named chairman), it settled with ValueClick for $2.9 million over lead generation practices. (ClickZ)
- In Mar. 2011, it settled with Chitika over deceptive opt-outs. (Mediapost)
- In Nov. 2011, it settled with video ad network Tremor over the use of Flash cookies. (AdAge)
- Also in Nov. 2011, it settled with Facebook about the sharing of user IDs with advertisers (ClickZ)
- In Oct. 2012, it settled a consumer privacy complaint with Compete. (Mediapost)
- In Dec. 2012, it settled with Epic Media Group over "history sniffing" practices. (AdExchanger)
Obama named Leibowitz to lead the agency in 2009. Prior to that he had been an FTC Commissioner since 2004. The 54-year-old Democrat told the New York Times he intends to enter the private sector. He said the Google antitrust suit could not be considered a failure. "You don’t take these jobs without wanting to bring a big case... But I think we did our job there.”
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