From: Tabor, April <atabor@ftc.gov>

Sent: Thursday, October 24, 2019 2:04 PM

To: privacyframework <privacyframework@nist.gov>

Cc: Kopp, Linda Holleran <lkopp@ftc.gov>; Mithal, Maneesha <MMITHAL@ftc.gov>

Subject: NIST Privacy Framework: Preliminary Draft Comments

Katie MacFarland

National Institute of Standards and Technology

Ms. MacFarland:

Please see the attached comment by Federal Trade Commission staff on the preliminary draft of the NIST 

Privacy Framework. 

Regards,

April

______________________________

April J. Tabor, Esq.

Acting Secretary

Federal Trade Commission

202.326.3310 | atabor@ftc.gov
1 

Federal Trade Commission Staff Comment on 

the Preliminary Draft for the NIST Privacy Framework: 

A Tool for Improving Privacy through Enterprise Risk Management 

I. Introduction

Thank you for the opportunity to comment on the Preliminary Draft for the NIST Privacy 

Framework: A Tool for Improving Privacy through Enterprise Risk Management (“Draft Privacy 

Framework” or “Framework”).1 These comments represent the views of the staff of the Bureau 

of Consumer Protection. The Commission has voted to authorize BCP staff to submit these 

comments. 

In today’s digital age, the collection, sharing, and use of consumer data has advanced 

innovation that many consumers find beneficial, such as improving consumer safety while 

driving through connected cars that offer real-time notifications of dangerous conditions;2

facilitating financial transactions through mobile payment systems;3 improving health and 

wellness through information provided by diagnostics, screening apps, and wearables;4 and 

improving the safety and comfort of homes through IoT devices.5

 

The widespread collection, sharing, and use of consumer data, however, can also raise 

significant risks. The news frequently reports on problematic privacy practices that can result in 

1 NIST, PRELIMINARY DRAFT, NIST PRIVACY FRAMEWORK: A TOOL FOR IMPROVING PRIVACY THROUGH 

ENTERPRISE RISK MANAGEMENT (2019) (“DRAFT PRIVACY FRAMEWORK”), available at

https://www.nist.gov/sites/default/files/documents/2019/09/09/nist_privacy_framework_preliminary_draft.pdf. 2 See, e.g., What Are the Benefits of Connected Vehicles?, DEPT. OF TRANS. OST-R RESOURCE (last visited Oct. 21, 

2019), https://www.its.dot.gov/cv_basics/cv_basics_benefits.htm. 3 See, e.g., Brenda Porter-Rockwell, 5 Benefits of Using a Mobile Payment App, LG-FCU (Aug. 23, 2017), 

https://www.lgfcu.org/personal-finance/5-benefits-of-using-a-mobile-payment-app. 4 See, e.g., C. Lu et al., The Use of Mobile Health Applications to Improve Patient Experience: Cross-Sectional 

Study in Chinese Public Hospitals, 6(5) JMIR MHEALTH UHEALTH 126 (2018), available at

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5990855/; Digital Health, FOOD & DRUG ADMIN. (last visited Oct. 

21, 2019), https://www.fda.gov/medical-devices/digital-health. 5 See, e.g., Nell Lewis, The 'Living Laboratory': Inside a Neighborhood of Smart Homes, CNN (Aug. 8, 2019), 

available at https://www.cnn.com/2019/08/07/business/alabama-power-smart-neighborhood/index.html. 
2

adverse outcomes for consumers.6

 Organizations must therefore take steps to safeguard the 

privacy of the consumer data that they collect, store, use, transfer, or share with others. 

We commend NIST for addressing this timely issue by proposing a tool designed to help 

management start a dialogue about how to manage privacy risks within their organizations. We 

also commend NIST’s inclusive, multi-stakeholder process in which it has solicited comments 

and feedback from industry, government, and consumer representatives. 

This comment first describes the Commission’s deep experience in protecting consumer 

privacy through enforcement, education, and policy work. Then, highlighting certain lessons 

that can be drawn from past privacy cases, this comment recommends that NIST consider certain 

clarifications to its Draft Privacy Framework. We provide these comments in an effort to ensure 

that the Framework and accompanying documents provide useful information and guidance to 

organizations without overly burdening them. These comments are not intended to provide a 

template for FTC law enforcement. 

II. Background on the Federal Trade Commission

The Federal Trade Commission (“FTC” or “Commission”) is an independent 

administrative agency responsible for protecting consumers and promoting competition. For 

decades, the Commission has been a leader in protecting consumer privacy through its 

enforcement actions, consumer and business education, and policy initiatives. 

The FTC protects consumer privacy through enforcement actions under the FTC Act, 

which prohibits unfair and deceptive acts or practices—including unfair and deceptive privacy 

 6 See, e.g., Brakkton Booker, Housing Department Slaps Facebook With Discrimination Charge, NPR (Mar. 28, 

2019), available at https://www.npr.org/2019/03/28/707614254/hud-slaps-facebook-with-housing-discriminationcharge; Alex Hern, Vibrator Maker Ordered to Pay Out C$4m for Tracking Users’ Sexual Activity, THE GUARDIAN

(Mar. 14, 2017), available at https://www.theguardian.com/technology/2017/mar/14/we-vibe-vibrator-trackingusers-sexual-habits. 
3

practices—in or affecting commerce.7

 The FTC also enforces a number of other statutes that 

protect consumer privacy, including the Fair Credit Reporting Act (“FCRA”)8 and the GrammLeach-Bliley Act (“GLB”),

9 which protect certain consumer financial information; the 

Children’s Online Privacy Protection Act (“COPPA”),10 which protects certain children’s 

information; and the Telemarketing Sales Rule (“TSR”),11 the CAN-SPAM Rule,12 and the Fair 

Debt Collection Practices Act (“FDCPA”),13 all of which protect consumers from certain 

unwanted intrusions.

The FTC has brought hundreds of cases protecting the privacy of consumer information. 

For example, the FTC has brought enforcement actions against organizations that, among other 

things, collected information from children online without parental consent;14 developed 

“stalking apps” to surreptitiously monitor other adults;15 deceived consumers about the 

collection, use, or disclosure of their financial, health, or other personal information;16 made 

 7 15 U.S.C. § 45(a). The FTC’s unfairness cases have challenged privacy and security practices that cause or are 

likely to cause substantial harm to consumers. See, e.g., In re Lenovo, Inc., Case No. C-4636 (F.T.C. January 2, 

2018) (Complaint), available at https://www.ftc.gov/system/files/documents/cases/1523134_c4636_lenovo

_united_states_complaint.pdf (alleging laptop manufacturer Lenovo unfairly preinstalled man-in-the-middle 

software that collected consumer internet browsing information without adequate consumer notice or consent).

8 15 U.S.C. § 1681 et seq. 9 15 U.S.C. § 6801 et seq.; Privacy of Consumer Financial Information, 16 C.F.R. Pt. 313 (“GLB Privacy Rule”); 

Standards for Safeguarding Customer Information, 16 C.F.R. Pt. 314 (“GLB Safeguards Rule”); Regulation P, 12 

C.F.R. Pt. 1016. 10 15 U.S.C. § 6501 et seq.; Children’s Online Privacy Protection Rule, 16 C.F.R. Pt. 312 (“COPPA Rule”). 11 Telemarketing Sales Rule, 16 C.F.R. Pt. 310 (implementing Telemarketing and Consumer Fraud and Abuse 

Prevention Act, 15 U.S.C. § 6101 et seq.). 12 CAN-SPAM Rule, 16 C.F.R. Pt. 316, implementing Controlling the Assault of Non-Solicited Pornography and 

Marketing Act (“CAN-SPAM”) of 2003, 15 U.S.C. § 7701 et seq. 13 15 U.S.C. § 1692 et seq. 14 E.g., FTC v. Google LLC & YouTube LLC, No. 1:19-cv-02642 (D.D.C. Sept. 10, 2019) (Complaint), available at 

https://www.ftc.gov/system/files/documents/cases/172_3083_youtube_revised_complaint.pdf; United States v. 

Musical.ly, No. 2:19-cv-1439 (C.D. Cal. Feb. 27, 2019) (Complaint), available at

https://www.ftc.gov/system/files/documents/cases/musical.ly_complaint_ecf_2-27-19.pdf. 15 In re Retina-X Studios, LLC, FTC No. 172 3118 (Oct. 22, 2019) (Complaint), available at

https://www.ftc.gov/system/files/documents/cases/172_3118_-_retina-x_studios_complaint_updated.pdf. 16 E.g., In re Unrollme, Inc., FTC No. 172 3139 (Aug. 8, 2019) (Complaint), available at

https://www.ftc.gov/system/files/documents/cases/172_3139_unrollme_complaint_8-8-19.pdf; In re PayPal, Inc., 

Case No. C-4651 (F.T.C. May 24, 2018) (Complaint), available at

https://www.ftc.gov/system/files/documents/cases/1623102_c-4651_paypal_venmo_complaint_final.pdf; FTC et al. 

v. Vizio, Inc., No. 2:17-cv-00758 (D.N.J. Feb. 6, 2017) (Complaint), available at
4

false promises about their compliance with the EU-U.S. Privacy Shield Framework;

17

deceptively tracked consumers online;18 publicly posted private data online without consumers’ 

knowledge or consent;19 or disclosed sensitive consumer information to unauthorized third 

parties.20 In short, when organizations engage in illegal privacy practices, the FTC holds those 

organizations accountable. 

These enforcement actions, including the complaints, consent agreements, and 

corresponding analyses to aid public comment, provide guidance on the Commission’s views as 

to which privacy practices violate the law as well as the necessary elements of a reasonable 

privacy program. For example, the Commission routinely requires companies under order for 

privacy violations to, among other things, designate an employee or employees to coordinate and 

be responsible for a privacy program; perform a risk assessment to identify material privacy 

risks; design and implement safeguards to control the identified risks; monitor the effectiveness 

 

https://www.ftc.gov/system/files/documents/cases/170206_vizio_2017.02.06_complaint.pdf; In re Practice Fusion, 

Inc., No. C-4591 (F.T.C. Aug. 16, 2016) (Complaint), available at

https://www.ftc.gov/system/files/documents/cases/160816practicefusioncmpt.pdf. 17 E.g., In re SecurTest, Inc., No. C-4685 (F.T.C. Aug. 21, 2019) (Complaint), available at

https://www.ftc.gov/system/files/documents/cases/182_3152_c4685_securtest_complaint.pdf; see also Press 

Release, Fed. Trade Comm’n, Five Companies Settle FTC Allegations That They Falsely Claimed Participation in 

EU-U.S. Privacy Shield (Sept. 3, 2019), https://www.ftc.gov/news-events/press-releases/2019/09/five-companiessettle-ftc-allegations-they-falsely-claimed. 18 E.g., In re Turn, Inc., Case No. C-4612 (F.T.C. Apr. 21, 2017) (Complaint), available at

https://www.ftc.gov/system/files/documents/cases/152_3099_c4612_turn_complaint.pdf; In re Compete, Inc., FTC 

No. 102 3155 (Feb. 25, 2013) (Complaint), available at

https://www.ftc.gov/sites/default/files/documents/cases/2013/02/130222competecmpt.pdf; In re Sears Holding 

Mgmt. Corp., Case No. C-4264 (F.T.C. June 4, 2009) (Decision and Order), available at

https://www.ftc.gov/enforcement/cases-proceedings/082-3099-c-4264/sears-holdings-management-corporationcorporation, later modified at In re Sears Holding Mgmt Corp., Case No. C-4264 (F.T.C. Feb. 28, 2018) (Order 

Approving the Petition to Reopen and Modify Final Order), available at

https://www.ftc.gov/system/files/documents/cases/c4264searsordergrantingpetition.pdf. 19 E.g., FTC v. EmpMedia (MyEx), No. 2:18-cv-00035 (D. Nev. June 15, 2018) (Order Granting Motion for Default 

Judgment and Final Order for Permanent Injunction and Other Relief), available at

https://www.ftc.gov/system/files/documents/cases/emp_order_granting_default_judgment_6-22-18.pdf; In re Jerk 

LLC d/b/a Jerk.com, Case No. 9361 (F.T.C. March 25, 2015) (Commission Opinion), available at

https://www.ftc.gov/system/files/documents/cases/150325jerkopinion_0.pdf. 20 E.g., FTC v. Accusearch, Inc., 570 F.3d 1187 (10th Cir. 2009).
5

of those controls; and regularly evaluate and update the privacy program in light of any changes 

to its business practices or business environment.21 

The Commission also promotes consumer privacy by engaging in consumer and business 

education, including through blog posts, educational materials, and social media activity. Recent 

topics have included children’s privacy,

22 “stalkerware,”23 revenge porn,24 information 

security,25 online safety,

26 credit monitoring,27 and the privacy of genetic information.28

Finally, the Commission promotes consumer privacy by undertaking a number of policy 

initiatives. For example, the Commission has hosted workshops related to children’s privacy,29

connected cars,30 education technology,31 drones,

32 and smart TVs.33 Since 2016, the 

 21 E.g., United States v. Facebook, Inc., No. 19-cv-2184, (D.D.C. Jul. 24, 2019) (Stipulated Order), available at

https://www.ftc.gov/system/files/documents/cases/182_3109_facebook_order_filed_7-24-19.pdf; In re Uber 

Technologies, Inc., Case No. C-4662 (F.T.C. Oct. 26, 2018) (Revised Final Decision and Order), available at

https://www.ftc.gov/system/files/documents/cases/152_3054_c4662_uber_technologies_revised_decision_and_orde

r.pdf; FTC et al. v. Vizio, Inc., Case No. 2:17-cv-00758 (D.N.J. Feb. 6, 2017) (Stipulated Order), available at

https://www.ftc.gov/system/files/documents/cases/170206_vizio_stipulated_proposed_order.pdf. 22 Peder Magee, Happy 20th Birthday, COPPA, FTC (Oct. 22, 2018), https://www.ftc.gov/newsevents/blogs/business-blog/2018/10/happy-20th-birthday-coppa; Lesley Fair, $170 million FTC-NY YouTube 

Settlement Offers COPPA Compliance Tips for Platforms and Providers, FTC (Sept. 4, 2019), 

https://www.ftc.gov/news-events/blogs/business-blog/2019/09/170-million-ftc-ny-youtube-settlement-offers-coppa. 23 Lesley Fair, FTC Takes Action Against Stalking Apps, FTC (Oct. 22, 2019),

https://www.consumer.ftc.gov/blog/2019/10/stalking-apps-retina-x-settles-charges. 24 Jennifer Leach, What to Do If You’re the Target of Revenge Porn, FTC (Jan. 11, 2018), 

https://www.consumer.ftc.gov/blog/2018/01/what-do-if-youre-target-revenge-porn. 25 E.g., Lesley Fair, Safeguard Your Network and Customer Credentials, FTC (Apr. 23, 2019), 

https://www.ftc.gov/news-events/blogs/business-blog/2019/04/safeguard-your-network-customer-credentials-tipslatest-ftc; Lesley Fair, $575 Million Equifax Settlement Illustrates Security Basics for Your Business, FTC (Jul. 22, 

2019), https://www.ftc.gov/news-events/blogs/business-blog/2019/07/575-million-equifax-settlement-illustratessecurity-basics. 26 Lisa Lake, Where is Your Online Search Leading You?, FTC (Aug. 27, 2019), 

https://www.consumer.ftc.gov/blog/2019/08/where-your-online-search-leading-you; Ari Lazarus, Back to School: 

Online Safety, FTC (Aug. 22, 2019), https://www.consumer.ftc.gov/blog/2019/08/back-school-online-safety. 27 Amanda Koulousias, Servicemembers and Guardsmen: Free Electronic Credit Monitoring Coming Soon, Military 

Consumer (June 24, 2019), https://www.militaryconsumer.gov/blog/servicemembers-and-guardsmen-freeelectronic-credit-monitoring-coming-soon-0. 28 E.g., Elisa Jillson, Selling Genetic Testing Kits? Read On., FTC (Mar. 21, 2019), https://www.ftc.gov/newsevents/blogs/business-blog/2019/03/selling-genetic-testing-kits-read. 29 FTC WORKSHOP, The Future of the COPPA Rule: An FTC Workshop (Oct. 7, 2019), https://www.ftc.gov/newsevents/events-calendar/future-coppa-rule-ftc-workshop. 30 FTC WORKSHOP, Connected Cars: Privacy, Security Issues Related to Connected, Automated Vehicles (June 28, 

2017), https://www.ftc.gov/news-events/events-calendar/2017/06/connected-cars-privacy-security-issues-relatedconnected. 
6

Commission has also hosted PrivacyCon, an annual conference that brings together academics, 

consumer advocates, researchers and others to discuss and present the latest research and trends 

related to consumer privacy and data security.34 The Commission has also issued or authorized 

staff to issue a number of relevant reports, including:

• Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for 

Businesses and Policymakers;

35

• Facing Facts: Best Practices for Common Uses of Facial Recognition 

Technologies;

36

• Big Data: A Tool for Inclusion or Exclusion? Understanding the Issues;

37

• Cross-Device Tracking: A Federal Trade Commission Staff Report;

38 and

• Internet of Things: Privacy and Security in a Connected World.

39

The Commission recently explored consumer privacy issues through a series of hearings on

Competition and Consumer Protection in the 21st Century,

40 and it is currently examining 

 31 FTC WORKSHOP, Student Privacy and Ed Tech (Dec. 1, 2017), https://www.ftc.gov/news-events/pressreleases/2017/10/ftc-department-education-announce-workshop-explore-privacy-issues. 32 FTC WORKSHOP, Fall Technology Series: Drones (Oct. 13, 2017), https://www.ftc.gov/news-events/eventscalendar/2016/10/fall-technology-series-drones. 33 FTC WORKSHOP, Fall Technology Series: Smart TV (Dec. 7, 2016), https://www.ftc.gov/news-events/eventscalendar/2016/12/fall-technology-series-smart-tv. 34 E.g., FTC CONFERENCE, PrivacyCon 2019 (June 27, 2019), https://www.ftc.gov/news-events/eventscalendar/privacycon-2019. 35 FTC, PROTECTING CONSUMER PRIVACY IN AN ERA OF RAPID CHANGE: RECOMMENDATIONS FOR BUSINESSES AND 

POLICYMAKERS (2012), available at https://www.ftc.gov/sites/default/files/documents/reports/federal-tradecommission-report-protecting-consumer-privacy-era-rapid-change-recommendations/120326privacyreport.pdf. 36 FTC, FACING FACTS: BEST PRACTICES FOR COMMON USES OF FACIAL RECOGNITION TECHNOLOGIES (2012), 

available at https://www.ftc.gov/sites/default/files/documents/reports/facing-facts-best-practices-common-usesfacial-recognition-technologies/121022facialtechrpt.pdf. 37 FTC, BIG DATA: A TOOL FOR INCLUSION OR EXCLUSION? UNDERSTANDING THE ISSUES (2016), available at

https://www.ftc.gov/system/files/documents/reports/big-data-tool-inclusion-or-exclusion-understandingissues/160106big-data-rpt.pdf. 38 FTC, CROSS-DEVICE TRACKING: A FEDERAL TRADE COMMISSION STAFF REPORT (2017), available at

https://www.ftc.gov/system/files/documents/reports/cross-device-tracking-federal-trade-commission-staff-reportjanuary-2017/ftc_cross-device_tracking_report_1-23-17.pdf. 39 FTC, INTERNET OF THINGS: PRIVACY AND SECURITY IN A CONNECTED WORLD (2017), available at

https://www.ftc.gov/system/files/documents/reports/federal-trade-commission-staff-report-november-2013-

workshop-entitled-internet-things-privacy/150127iotrpt.pdf. 40 FTC HEARING, Hearing #12: The FTC’s Approach to Consumer Privacy (Apr. 9-10, 2019), 

https://www.ftc.gov/news-events/events-calendar/ftc-hearing-competition-consumer-protection-21st-century-
7

whether it should update the COPPA Rule in light of emerging technologies and changing 

business practices in the online children’s marketplace.

41

III. Recommendations

NIST has proposed the Draft Privacy Framework as a voluntary tool intended to help 

organizations start a dialogue about managing privacy risks.42 We recognize that the Draft 

Privacy Framework is the first step of many, and that NIST plans to continue its work in a 

number of areas, as reflected in its Proposed NIST Privacy Framework Roadmap Topic Areas.43 

With that in mind, we offer the following comments and recommendations on the Draft Privacy 

Framework. 

As a preliminary matter, we agree with NIST’s approach of creating a flexible framework 

that allows organizations to tailor their privacy program to the individual needs of their business, 

their data processing practices, and their business environment. Privacy programs are not onesize-fits-all, but rather must be tailored to the size and complexity of the organization, the scope 

and nature of its data processing activities, and the volume and sensitivity of the consumer data 

at stake.44 

 february-2019; see also Press Release, Fed. Trade Comm’n, FTC Announces Hearings on Competition and 

Consumer Protection in the 21st Century (June 20, 2018), https://www.ftc.gov/news-events/pressreleases/2018/06/ftc-announces-hearings-competition-consumer-protection-21st. 41 FTC WORKSHOP, The Future of the COPPA Rule: An FTC Workshop (Oct. 7, 2019), https://www.ftc.gov/newsevents/events-calendar/future-coppa-rule-ftc-workshop. 42 E.g., DRAFT PRIVACY FRAMEWORK, at 3 (the Core functions “enables a dialogue... about important privacy 

protection activities and desired outcomes.”). 

43 NIST, PROPOSED NIST PRIVACY FRAMEWORK ROADMAP TOPIC AREAS (2019), available at 

https://www.nist.gov/sites/default/files/documents/2019/06/26/pf-roadmap-areas-06.26.2019.pdf. 44 See e.g., In re Uber Technologies, Inc., Case No. C-4662 (F.T.C. Oct. 26, 2018) (Decision and Order), available 

at https://www.ftc.gov/system/files/documents/cases/152_3054_c4662_uber_technologies_revised_decision

_and_order.pdf (requiring implementation of privacy program that “contain controls and procedures appropriate to 

Respondent’s size and complexity, the nature and scope of Respondent’s activities, and the sensitivity of the 

Personal Information”); FTC et al. v. Vizio, Inc., No. 2:17-cv-00758 (D.N.J. Feb. 6, 2017) (Decision and Order), 

available at https://www.ftc.gov/system/files/documents/cases/170206_vizio_stipulated_proposed_order.pdf (same). 
8

We also agree with the Draft Privacy Framework’s recognition that privacy programs 

need to evolve with an organization’s changing practices and business environment.45 The 

Commission’s recent settlement with Musical.ly, now known as TikTok, is illustrative. In that 

case, the company launched a lip-synching app that was not necessarily targeted to kids when it 

was launched. At some point, however, it became readily apparent that a large percentage of the 

app’s audience consisted of children under 13. Many companies developing apps with broad 

appeal may find themselves in this position. A risk assessment up front may justify a decision

that the company does not need to obtain parental consent under COPPA, but an ongoing 

assessment may catch changes in user bases, technologies, or content that would suggest the 

need for additional compliance measures.

46

While we commend NIST’s overall approach and believe that the Framework will 

provide important guidance to business, we have five suggestions for clarifying the Draft Privacy 

Framework that NIST may want to consider.

First, we recommend that NIST consider clarifying that “privacy breaches,” generally 

defined as “unauthorized access to information,” should be considered at each step of the 

Framework. Currently, the Draft Privacy Framework addresses privacy risks, defined as “the 

likelihood that individuals will experience problems resulting from data processing, and the 

impact should they occur,” only generally.47 Although privacy breaches are a subset of privacy 

 45 See, e.g., In re Uber Technologies, Inc., Case No. C-4662 (F.T.C. Oct. 26, 2018) (Decision and Order), available 

at https://www.ftc.gov/system/files/documents/cases/152_3054_c4662_uber_technologies_revised_decision_and

_order.pdf (requiring company to regularly monitor effectiveness of privacy program, and make adjustments as 

necessary in light of that monitoring, changes to the company’s business operations or arrangements, or “any other 

circumstances that Respondent knows or has reason to know may have an impact on the effectiveness of the privacy 

program”); FTC et al. v. Vizio, Inc., No. 2:17-cv-00758 (D.N.J. Feb. 6, 2017) (Stipulated Order), available at

https://www.ftc.gov/system/files/documents/cases/170206_vizio_stipulated_proposed_order.pdf (same). 46 See United States v. Musical.ly, No. 2:19-cv-01439 (C.D. Cal. Feb. 27, 2019) (Complaint), available at

https://www.ftc.gov/system/files/documents/cases/musical.ly_complaint_ecf_2-27-19.pdf. 47 DRAFT PRIVACY FRAMEWORK, at 30 (Appendix B: Glossary).
9

risks,48 the Draft Privacy Framework suggests that privacy breaches may need to be addressed 

only in the Protect – P Core Function, which more directly describes controls relating to data 

security. 

For example, the Draft Privacy Framework currently states: “There are five Functions: 

Identify-P, Govern-P, Control-P, Communicate-P, and Protect-P. The first four can be used to 

manage privacy risks arising from data processing, while Protect-P can help organizations 

manage privacy risks associated with privacy breaches.”49 The risk of unauthorized access to 

information, however, is one of the most significant privacy risks against which organizations 

need to safeguard, and should be addressed at each step of the Draft Privacy Framework. For 

example, failing to address the risk of unauthorized access at the assessment or governing stage 

of the Framework is likely to result in an organization’s failure to properly control for that risk. 

While we understand that NIST wants to explain how organizations can use the Draft Privacy 

Framework alongside NIST’s Cybersecurity Framework,50 we believe that clarifying the 

discussion of privacy risks and privacy breaches would be useful, particularly for organizations 

that may not also use NIST’s Cybersecurity Framework. 

Second, we recommend that NIST consider clarifying that an organization’s risk 

assessment, safeguards, and other related procedures for managing privacy risks should account 

for the sensitivity of the consumer data that it is processing. Generally, collecting, using, or 

sharing sensitive information, such as precise geolocation data, biometric data, or health 

information, poses greater privacy risks to individuals and requires greater measures to safeguard 

it. Currently, the Draft Privacy Framework describes an approach where organizations address 

 48 E.g., id. at 6 (Figure 2).

49 See id. at 5 (emphasis in original); see also id. at 10 (Identify-P Function relates to developing “the organizational 

understanding to manage privacy risk for individuals arising from data processing”) (emphasis added). 50 NIST, FRAMEWORK FOR IMPROVING CRITICAL INFRASTRUCTURE CYBERSECURITY VERSION 1.1 (2018), available 

at https://nvlpubs.nist.gov/nistpubs/CSWP/NIST.CSWP.04162018.pdf.
10

privacy risks by considering potential problems individuals could experience from data 

processing.

51 This outcome-based approach is useful, particularly in situations where even nonsensitive data can become sensitive based on how it is collected, used or shared. However, we 

recommend expanding this approach to include an explicit consideration of the sensitivity of 

data, which can help predict risky outcomes

For example, in the FTC enforcement action against Lenovo, the laptop manufacturer 

preinstalled “man-in-the-middle” software that injected ads on certain shopping websites. While 

the data used for this limited purpose was generally non-sensitive, the software accessed all of 

the laptop users’ internet browsing activity, including login credentials, financial account 

information, health information, and the content of communications. The Commission alleged, 

among other things, that Lenovo’s privacy practices were unfair because the company did not 

provide consumers with sufficient notice and consent mechanisms appropriate to processing such 

sensitive information.52 

In deciding whether to install “man in the middle” software in the future, a company 

using an “outcomes-based approach” without specifically considering the sensitivity of the data 

may not accurately predict the privacy risks of collecting sensitive data if the software would 

only be used to serve ads. But, if the company were to focus on the objective sensitivity of the 

data collected by the software as part of its assessment of potential problems for consumers and 

the impact should those problems occur, the company may be more likely to accurately consider 

the privacy risks associated with that collection. While we note that the Draft Privacy 

Framework does mention considering data sensitivity as part of an organization’s risk 

 51 E.g., DRAFT PRIVACY FRAMEWORK, at 6. 52 See In re Lenovo, Inc., Case No. C-4636 (F.T.C. Sept. 13, 2017) (Complaint), available at

https://www.ftc.gov/system/files/documents/cases/1523134_c4636_lenovo_united_states_complaint.pdf.
11

assessment,53 we believe a more robust discussion of this concept would be useful. For example, 

discussing data sensitivity could be helpful, among other places, where the Framework discusses 

the approach of responding to privacy risks by “avoiding the risk.”54 NIST may want to consider 

providing an example of avoiding the risk by companies deciding to limit the collection of

sensitive data. 

Third, we recommend NIST consider offering a more detailed discussion of the analysis 

an organization should undertake as part of the Draft Privacy Framework’s Communicate-P Core 

Function, which is intended to enable organizations and individuals to have a “reliable 

understanding” of how data are processed.55 In our experience, ensuring that organizations and 

individuals have an understanding of a company’s actual data processing practices is critical to a 

successful privacy framework. NIST may therefore want to consider posing a series of questions 

to help shape its Communicate-P Core Function, such as, 

• Given the context of the organization’s interaction with consumers, what would 

be their reasonable expectations regarding the organization’s data processing 

practices (including collection, use, sharing, and storage)?

• What are the organization’s public-facing representations regarding its data 

processing practices and are those representations prominent and understandable?

and 

• Are the organization’s actual data processing practices in alignment with 

individual expectations and public-facing representations? 

 

 53 See DRAFT PRIVACY FRAMEWORK, at 22 (Identify-P Core, Subcategory ID.RA-P1), and 36 (Appendix D -

Conducting Privacy Risk Assessments). 54 See id., at 6-7 (“Avoiding the risk (e.g., organizations may determine that the risks outweigh the benefits, and 

forego or terminate the data processing”)).

55 See id. at 10; see also id. at 26 (Communicate-P Core, Subcategory CM.AW-P1 states, “Mechanisms (e.g., 

notices, internal or public reports) for communicating data processing purposes, practices, associated privacy risks, 

and options for enabling individuals’ data processing preferences and requests are established and in place.”).
12

We believe that a more robust discussion of this key function is important because, in our 

experience, one of the most common privacy violations committed by organizations occurs when 

they fail to accurately describe how they collect, use, or share consumer data. 

For example, in the FTC’s recent enforcement action against Facebook, Inc., the FTC 

alleged that the company violated the FTC Act and a prior FTC order when it collected, used, or 

shared consumer data in a manner contrary to its promises to users.

56 The Commission alleged 

that the company had promised to share certain consumer data only with a user’s “Friends,” but 

in fact, also shared that data with app developers used by those Friends. Similarly, when the 

company collected certain telephone numbers for the stated purpose of improving account 

security, such as for two-factor authentication, it also used those telephone numbers for the 

undisclosed purpose of advertising. The Commission assessed a $5 billion civil penalty for 

Facebook’s alleged violations of the Commission’s prior order.

57 In addition to undermining 

consumer trust, organizations can incur significant legal risk if they do not live up to their 

privacy promises and do not accurately communicate how consumer data is collected, used, or 

shared.

58

Fourth, we recommend that NIST consider clarifying that the Govern – P Core Function

of the Framework includes considering the designation of specific individual(s) to be in charge 

 56 United States v. Facebook, Inc., No. 1:19-cv-02184, (D.D.C. Jul. 24, 2019) (Stipulated Order), available at

https://www.ftc.gov/system/files/documents/cases/182_3109_facebook_order_filed_7-24-19.pdf. 57 The Commission could assess civil penalties against Facebook because its privacy practices violated a prior 

Commission order. 15 U.S.C. § 45(l). Privacy violations may also be subject to civil penalties under COPPA, 15 

U.S.C. § 6502(c), and the FCRA, 15 U.S.C. § 1681(s)(a)(2)(A). 58 See, e.g., United States v. Facebook, Inc., No. 1:19-cv-02184, (D.D.C. Jul. 24, 2019) (Stipulated Order), available 

at https://www.ftc.gov/system/files/documents/cases/182_3109_facebook_order_filed_7-24-19.pdf; see also In re 

Unrollme, Inc., FTC No. 172 3139 (Aug. 8, 2019) (Complaint), available at

https://www.ftc.gov/system/files/documents/cases/172_3139_unrollme_complaint_8-8-19.pdf (alleging company 

failed to inform consumers that it would collect, maintain, and sell information from users’ email receipts while 

providing unrelated email subscription management services).
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of creating, implementing, and maintaining the privacy program.

59 Currently, the Draft Privacy 

Framework describes assigning responsibilities to a cross-functional team to implement an 

organization’s privacy policies, which is generally an effective approach. However, it is 

important for the Draft Privacy Framework to explicitly state that specific individual(s) should 

be designated as responsible for overseeing the creation, implementation, and maintenance of the 

privacy program across the entire company. 

For example, the first case example in the Hypothetical NIST Privacy Framework Use 

Case Profiles60 (“Hypothetical Case Profiles”) shows a hypothetical cross-functional team, 

including legal team members, product engineers and management, working seamlessly together 

to discuss and implement privacy policies for a new dashboard application. There does not 

appear to be anybody driving implementation of the privacy program, but various team members 

nevertheless notice gaps in the data map that need addressing even when those gaps fall out of 

their assigned area of responsibility. In our enforcement experience, this is the exception and not 

the norm. We believe that without someone in charge of creating, implementing and maintaining 

an organization’s privacy program, it is more likely that such gaps would fall through the cracks. 

Even adequately assigned responsibilities may go unfinished as client-driven or other work takes 

priority or staff turnover results in new employees being unaware of their privacy-related 

responsibilities. Without someone in charge of the privacy program, an organization also is less 

likely to update its privacy-related policies or practices in response to changes in its products, 

 59 See, e.g., In re Uber Technologies, Inc., Case No. C-4662 (F.T.C. Oct. 26, 2018) (Decision and Order), available 

at https://www.ftc.gov/system/files/documents/cases/152_3054_c4662_uber_technologies_revised_decision_

and_order.pdf (requiring designation of employee or employees to “coordinate and be responsible” for the privacy 

program); FTC et al. v. Vizio, Inc., No. 2:17-cv-00758 (D.N.J. Feb. 6, 2017), available at

https://www.ftc.gov/system/files/documents/cases/170206_vizio_stipulated_proposed_order.pdf (same). Cf. 16 

C.F.R. § 314.4(a) (requiring certain financial institutions under the FTC’s jurisdiction to “[d]esignate an employee 

or employees to coordinate” information security program). 60 NIST, HYPOTHETICAL NIST PRIVACY FRAMEWORK USE CASE PROFILES (2019) (“HYPOTHETICAL CASE 

PROFILES”), available at https://www.nist.gov/sites/default/files/documents/2019/06/26/pf-hypothetical-use-cases06.26.2019.pdf.
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practices or business environment. As a result, the Commission regularly requires organizations 

that are under order for privacy violations to designate a person or persons to be in charge of 

creating, implementing, and maintaining the privacy program.61

Finally, we recommend NIST consider clarifying the Draft Privacy Framework’s 

discussion regarding ‘current’ and ‘target’ privacy profiles to reflect that performing a 

comprehensive risk assessment is a necessary first step before making decisions about which 

privacy controls should be implemented and the timetable for such implementation. Currently, 

the Draft Privacy Framework suggests that it may be acceptable for an organization to not have a 

fully-implemented privacy program on Day 1.62 We agree that not all aspects of the Draft 

Privacy Framework may apply to an individual organization, and that it may not be feasible for 

an organization to implement all privacy-related controls and safeguards at once. However, 

reviewing all aspects of the company’s operations that process consumer data, including 

inventorying all consumer data that is collected, stored or shared, and then assessing the privacy 

risks of that data processing, is an important first step before an organization can decide which 

privacy controls need to be implemented, and in which order of priority. 

For example, in the second case example in NIST’s Hypothetical Case Profiles, Company 

B allows its most pressing business or customer needs to drive its decisions about which specific 

privacy controls to implement, and decides not to do a full risk assessment of its data processing 

activities until a later time. In our enforcement experience, this can allow significant 

vulnerabilities and privacy risks affecting large numbers of consumers to be left unaddressed 

 61 E.g., United States v. Facebook, Inc., No. 1:19-cv-02184, (D.D.C. Jul. 24, 2019) (Stipulated Order), available at

https://www.ftc.gov/system/files/documents/cases/182_3109_facebook_order_filed_7-24-19.pdf; In re Uber 

Technologies, Inc., Case No. C-4662 (F.T.C. Oct. 26, 2018) (Decision and Order), available at

https://www.ftc.gov/system/files/documents/cases/152_3054_c4662_uber_technologies_revised_decision_and_orde

r.pdf; FTC et al. v. Vizio, Inc., No. 2:17-cv-00758 (D.N.J. Feb. 6, 2017) (Stipulated Order), available at

https://www.ftc.gov/system/files/documents/cases/170206_vizio_stipulated_proposed_order.pdf. 62 See DRAFT PRIVACY FRAMEWORK, at 10-11; see also HYPOTHETICAL CASE PROFILES, at 5-6.
15

while relatively small privacy risks are tackled. In this particular example, Company B 

developed apps used in Europe and Asia, thereby raising additional potential concerns about 

fully complying with the General Data Protection Rule and the EU-U.S. Privacy Shield 

Framework, and the Asia-Pacific Economic Cooperation’s Cross-Border Privacy Rules (APEC 

CBPR). A full risk assessment of Company B’s data-processing activities would provide the 

necessary foundation for organizations to make informed decisions on managing their privacy 

risks.

Conclusion

Thank you again to NIST and to all of the stakeholders that contributed to this process. 

The FTC continues to devote substantial resources in this area and looks forward to working 

with NIST to promote privacy of consumer data.