Wearing Your Data on Your Sleeve: Wearables, the FTC, and the Privacy Implications of this New Technology

The widespread proliferation of the IoT and wearables in general is helping to contribute to the vast trove of data generated on a daily basis. While these new technologies open the door to new methods of data-generation, they also create new vulnerabilities for consumers. This note provides a background on wearables and the privacy issues and risks inherent in this new technology. It examines the Federal Trade Commission’s (FTC) power to regulate privacy under the deceptive and unfairness prongs of Section 5 of the FTC Act and examines recent challenges to the FTC’s power and potential limitations the FTC may face when considering enforcement actions. This note highlights two instances in which companies did not automatically enter into consent orders with the FTC—a trend that may continue given one company’s recent successful challenge of a FTC claim. This challenge may ultimate demonstrate the FTC was overreaching its Section 5 authority and may ultimate change the nature of FTC claims. Ultimately, this paper aims to provide an overview of the privacy landscape in the U.S. and argue that while the FTC may recently be overreaching its Section 5 powers by litigating under the unfairness prong of Section 5, if it continues enforcing claims against companies for deceptive data practices and provides more specific guidance on best data practices, it can continue to monitor the efficient operation of the markets, advance technological development, and protect data security in the United States