Outline: What You Need to Know About the FTC's Latest Privacy Strike

Observers might be thinking, “Haven’t we seen this movie before?” But despite this, U.S. lawmakers are discussing proposals such as the U.S. Data Privacy and Protection Act (ADPPA), so Attention needs to be paid to this issue.

First, to recap…

According to Commission Chair Lina M. Khan, the FTC is working on issues including “endless collection of user data” and “potentially illegal Informed parties were consulted on a wide range of issues, including “conduct”. In particular, the agency wants to know where it fell short in the past and how exactly it can meet the demands of the future, a key goal of the increasingly digital U.S. economy. By “establishing a sound public record” of public comment, she said the FTC would be better informed when deciding what any new rule should contain. The agency also wants to better understand how companies monetize personal information and use deceptive designs or marketing tactics to “influence or coerce consumers into making choices they wouldn’t make.” It also plans to study how digital tools affect children and how companies use data to retaliate against customers. “For years, more than two decades, the FTC has been on the front lines of fighting privacy violations and data security breaches using our existing enforcement tools,” Khan said in a news conference last week. “We have now seen that the growing and continued digitization of our economy means that some of these practices will be widespread, and that enforcement on a case-by-case basis may not adequately deter violations or remedy the resulting harm.” The Commission concluded by 3 A vote of 2 voted to issue advance notice of proposed rulemaking (ANPR), with the comment submission window closing 60 days after the notice was posted. The FTC investigation will cover multiple aspects of how the digital economy works. Areas of concern include the company’s consumer consent policies, disclosure of data collection practices to the public, and the cost of potential remedies. Below are some excerpts — questions and topics the FTC is seeking public comment on — that operators of the ad-supported media industry should keep in mind.

• To what extent, if any, new rules should limit targeted advertising and other commercial surveillance practices beyond what civil rights law already has imposed restrictions?

If the new rules prohibit the status quo, what alternative advertising practices can companies turn to?

• How cost-effective is contextual advertising compared to targeted advertising?
• To what extent should the new trade regulatory rules enforce, if any, restrictions on companies’ collection, use and retention of consumer data?

To what extent should the FTC require companies to disclose their business surveillance practices? How often should the FTC require self-reports, third-party audits, or evaluations of its business oversight practices?

So what now?

ANPR includes a September 8 forum where the public can share their views on whether new rules are needed to protect public privacy and information at virtual events. Khan said the agency’s lengthy rulemaking process has given the agency “sufficient time to reassess” plans based on any progress in Congress, while noting that public feedback will also serve as a source for federal privacy policies outside the agency itself provide information. The FTC’s rulemaking process is by no means short-lived. If the FTC moves forward after the public comment period, Congress must be notified 30 days before the proposal is released, followed by an additional public notice and comment period, followed by an informal hearing. The FTC will also conduct a regulatory analysis before developing any final rules, and then need to issue any updated rules 30 days before the rules take effect. Only then can the agency begin enforcing “with actual knowledge or fairly implicit knowledge” of anyone who violates the rules. Mark Pearlstein, Permutive’s chief risk officer, noted how the latest developments are further evidence that the industry must move out of its comfort zone. He added: “If big tech companies are reluctant to put customer privacy first, as we saw with Google’s delayed deprecation of third-party cookies, does the FTC really have a choice?” last week In a news conference at , FTC Commissioner Rebecca Kelly Slaughter said the agency has a “duty” under current law to deal with illegal conduct. However, she added that any new rules approved by the FTC would be “in addition to, not replacements for” the new congressional legislation. (FTC Commissioner Alvaro Bedoya also noted that he would not vote for any rules that overlap with the ADDPA.) “Opening records like this is important to the FTC…to show that we no longer shy away from using all the tools at our disposal to block the market.” unlawful conduct,” Kelly Slaughter said.