By Andrew Feinberg - 04/17/12 01:59 PM EDT
In both cases, the companies provided platforms "for those who choose [to share] … but they cannot make that choice for the users," she said. "[T]aking is not sharing."
The incidents made clear the need for the FTC to update its approach, she said, to take into account the "vast changes" and "myriad ways consumers information is collected and used."
But FTC action needs to be complemented by Congress enacting "baseline legislation" to create an environment of "certainty and clear rules of the road" to allow the industry to "act decisively," she said.
In Brill's ideal environment, the process will be "intuitionally designed" to not be a fixed list of issues. And because companies will build features in for "privacy by design," such that it should not be an afterthought, she said, "we won't know what will be happening 10 years from now."