The FTC will begin a rulemaking process with an open public comment period

WASHINGTON, D.C. – Today, the Tech Oversight Project issued the following statement praising the Federal Trade Commission (FTC) and Chair Lina Khan for tackling data privacy through a new rulemaking process with an eye to safeguarding Americans’ personal data and shielding users from Big Tech overreach. The process will tackle commercial surveillance and scrutinize how companies collect, use, and monetize data, including facial recognition, online advertising, mobile location data, and cybersecurity breaches.

“While Congress continues its work to meaningfully protect and secure our most private data, the FTC and Chair Lina Khan are taking action and leading from the front,” said Sacha Haworth, Executive Director of the Tech Oversight Project. “We cannot continue to live in a world where Big Tech giants profit off of an unfettered window into our daily lives – what we read, our location, our health, who we know, and what we buy. Big Tech monopolies have gone unchecked for far too long, and now is the time to take a stand, provide oversight, and cripple their predatory business model. We applaud the FTC and Chair Khan for taking critical steps forward to safeguarding our privacy against Big Tech and their abuses.”

PoliticoPro: FTC sets its sights on stronger privacy regulations

By Alfred Ng on 8/11/22

The FTC laid out a road map for regulating privacy on Thursday, seeking public comments on how to increase protections for consumer data at a moment when legislation in Congress to do the same is stuck in limbo.

The agency issued an advanced notice of public rulemaking on commercial surveillance, intent to tackle several ways that people’s data gets taken, including facial recognition, online advertising, mobile location data and cybersecurity breaches.

Challenges ahead: The notice passed with a 3-2 vote, indicating there will be challenges to these proposals in the coming months. FTC Chair Lena Khan and commissioners Rebecca Kelly Slaughter and Alvaro Bedoya voted yes, while Noah Phillips and Christine Wilson voted no.

But still a big move: Thursday’s notice is not an immediate shift in the digital privacy landscape, but a significant first step toward it. It kicked off a long process that will include public comments on potential new rules, more proposals, another round of public comments, and potential challenges in court over these proposals.

Areas for input: The FTC said it’s seeking comment on concerns including companies failing to protect their customers’ data, addictive surveillance-based services and algorithmic bias. The notice also indicated that the FTC will seek rulemaking on online tracking from advertisers, including browsing and purchase histories as well as services tracking physical movements.

Scrutinizing online ads: The agency also called out behavioral advertising in its notice.

“The growing digitization of our economy — coupled with business models that can incentivize endless hoovering up of sensitive user data and a vast expansion of how this data is used — means that potentially unlawful practices may be prevalent,” Khan said in a statement. “Our goal today is to begin building a robust public record to inform whether the FTC should issue rules to address commercial surveillance and data security practices and what those rules should potentially look like.”

The legislative effort: The proposals come as Congress struggles to come to agreement on the the American Data Privacy and Protection Act (HR 8152 117), a bipartisan bill that’s been the closest that Congress has come to passing a federal data privacy law.

While ADPPA has a quicker path to regulating data privacy than the FTC’s rulemaking process, it’s also bogged down by opposition from California lawmakers and Senate Commerce Chair Maria Cantwell (D-Wash.), who holds the key to the bill getting to a vote.

Still, lawmakers behind the bill argue that the legislation is a more effective measure for protecting privacy.

House Energy and Commerce Committee Republican leader Cathy McMorris Rodgers (R-Wash.) said privacy protections should come through Congress rather than from executive action.

She criticized FTC rules for failing to have a national privacy standard and called the bill the “best path forward to rein in Big Tech.”

“One standard — clearly directed by Congress — is paramount to minimizing the amount of peoples’ information companies are allowed to collect, process, and transfer,” McMorris Rodgers said in a statement.

The FTC’s process will take longer, but may be a more viable path to stronger privacy regulations if ADPPA’s hopes are extinguished.

What’s next: The first virtual public forum on this notice is scheduled for Sept. 8.