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Bipartisan AGs Want Rule

Senate Republicans Want FTC to End Privacy Rulemaking

The FTC should end its data privacy rulemaking process because the agency lacks authority and Congress is the proper venue to settle the privacy debate, Senate Republicans told the agency in comments on an Advanced NPRM. A bipartisan group of 33 state attorneys general urged the commission Thursday to issue a rule to better protect consumers.

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The FTC is collecting public comment for its ANPRM through Monday. Consumer advocates urged the agency to press forward on much-needed regulatory clarity on such things as children’s privacy and targeted advertising. Industry groups told the agency the ANPRM is overly broad and many of the concepts exceed agency authority.

It’s “deeply disturbing” the FTC would consider unilateral data privacy rules while Congress is actively debating privacy legislation, said Sens. Mike Lee, R-Utah; Marsha Blackburn, R-Tenn.; James Lankford, R-Okla.; Marco Rubio, R-Fla.; and Ted Cruz, R-Texas. The potential rule, based on ANPRM language, would have significant costs to the economy and would leave consumers without the benefit of deliberative debate from elected officials, they wrote. Privacy issues are best handled by Congress, and the ANPRM potentially violates Section 18 of the FTC Act, they said.

Hopefully this process leads to a rule that addresses sensitivity surrounding consumers’ medical data, biometric data, location data and data minimization needs, the AGs said in their letter to the commission. The group included Republican AGs from Texas, Arizona, Indiana, Montana, Nebraska, South Carolina and Utah. Democrats from New York, Massachusetts, Connecticut, Colorado and Washington, D.C., also signed onto the letter: “We hope the [ANPRM] leads to a rule that serves as a critical tool to address misconduct and prevent consumer harm.”

Congress is the best place to enact comprehensive, preemptive data privacy legislation, said the Information Technology Industry Council. The ANPRM is “overly broad” and doesn’t deliver a “balanced assessment of data-driven technologies,” said ITI. The agency is focused entirely on potential harms from data collection and ignores the countervailing benefits, the group said.

The ANPRM “rightly” seeks input about the effects of “addictive consumer interfaces on kids,” the “use of recommendation systems” and “discrimination in housing and jobs,” said Mozilla. Mozilla seeks a combination of regulatory enforcement, increased public awareness, technical solutions from industry and new research to address things like misinformation, discrimination, societal manipulation and data privacy breaches. Mozilla noted consumers face deceptive design tactics that trick them into handing over unnecessary data, and said it’s critical for the agency to use its authority against deception to address this.

The FTC should pursue new rules codifying bans on deceptive claims about consumer data security and authorize the agency to seek civil penalties on the first offense, said the Wikimedia Foundation: “Deceptions, omissions of truth, and misleading marketing statements affect consumer confidence when they are uncovered, and a lack of disincentives against these sorts of behaviors create a perverse race to the bottom for industry actors.”

The ANPRM “seeks to vilify the entire ad-supported foundation of the online experience,” said the Free State Foundation. “Extreme Draconian measures” under consideration include constraining or banning artificial intelligence and “placing excessive and unwarranted limits on targeted advertising” that enables many of the free services on the internet. Targeted advertising hasn’t been found to be unfair or deceptive, FSF said: The ANPRM questions adults’ ability to make “educated decisions” in the best interest of themselves and their children.

The FTC should use its limited resources to focus on data privacy within the confines of its mission rather than “intervening in every facet of the American economy,” said NetChoice. Agencies including the Equal Employment Opportunity Commission, Consumer Financial Protection Bureau and the Federal Housing Administration can already use many existing laws to address the discrimination the FTC highlights in its ANPRM, it said.

A rulemaking is “sorely needed” to protect consumers from commercial surveillance, but the agency should be “especially attentive” to law enforcement and agencies increasingly using commercial surveillance to monitor individuals, said the New York University School of Law Policing Project. Private companies are amassing vast quantities of data on people’s movements, relationships and activity, largely without consumers' knowledge, it said: “Policing agencies are purchasing location data derived from the everyday apps we install on our cellphones, including weather, map, dating, and prayer apps.”