During due diligence for an asset purchase, the acquirer's privacy team discovers that the target collected customer email addresses under a privacy notice that promised the data would never be shared with or transferred to third parties. The acquirer plans to fold those email lists into its own marketing programme post-closing. Under the FTC's approach to privacy in mergers and acquisitions, what is the most defensible position the acquirer should take regarding that data?
- ATreat the closing as an automatic exception that lets the acquirer use the data under its own newer privacy notice, since the original entity will cease to exist.
- BHonour the original promise and continue to use the email data only in ways consistent with the notice under which it was collected unless affected consumers are given notice and a chance to opt out. Correct
- CUse the data freely because privacy promises in a notice are aspirational statements that the FTC does not treat as enforceable commitments.
- DDelete the email addresses immediately, since any post-closing use of data collected under a restrictive notice is per se unlawful regardless of consumer choice.
Why A is wrong: This is tempting because corporate dissolution feels like it severs old obligations, but the FTC has treated promises made to consumers as travelling with the data, so a successor cannot wipe them out simply by closing the deal.
Why B is correct: Correct: the FTC has signalled that a buyer inherits the privacy commitments under which data was collected, so material changes generally require notice and consumer choice rather than silent repurposing.
Why C is wrong: This misstates FTC practice, which treats unfulfilled privacy promises as deceptive acts under Section 5, so a notice commitment is enforceable rather than merely aspirational.
Why D is wrong: Deletion is overcautious and not required as a per se rule; the FTC framework permits continued use consistent with the original notice or a changed use accompanied by notice and choice, so this absolute position is wrong.