Forget Congress: The FTC’s about to have big data fights
Hello, and welcome to Protocol Policy! Today’s a good moment to realize how much can change in a year — even at a slow-moving federal agency. Plus, Grayscale brought on a heavy to help with the SEC, Apple is finally making concessions to the Dutch, and John Oliver is dabbling in the tech policy beat again.
Privacy is ready to go public
My mom used to tell me I only needed to floss the teeth I wanted to keep. The same attitude applies to privacy and the FTC right now: You only need to pay attention if you have data — your own or someone else’s — you want to hold on to. Partially, this is because Congress is just getting out of bed after snoozing a couple of extra years on this issue, and lawmakers’ proposals would put a lot of extra responsibilities on the agency. But the main reason is that Lina Khan, who will start her second year as chair this week, isn’t going to wait for lawmakers.
- One of the things Khan did with her first year was make changes that would help speed along the agency’s famously laborious process for regulating whole sectors — like, say, the data economy.
- FTC Democrats haven’t been shy about wanting to tackle what they call data abuse, but the effort had to wait, as the departure of Rohit Chopra for CFPB and the slow confirmation of his replacement left the agency without a majority for several months.
Now, longtime privacy expert Alvaro Bedoya has taken his seat, just in time for Khan’s first anniversary. Probably not coincidentally, she’s begun talking about her ambitions.
- As part of a series of press interviews last week, Khan told me her thoughts about the importance of limiting certain kinds of data collection entirely.
- She also laid out her dislike of behavioral ad targeting (“incentives that are not always aligned with people's privacy protections”) and discriminatory uses of data.
- And Khan made clear that, whatever the status of lawmakers’ debate, she wants the FTC to use its powers to protect consumers.
- What comes next is likely a (still pretty lengthy) process establishing certain specific and prevalent uses of data are unfair or deceptive. Yes, that’s a mouthful on purpose.
- Since Khan mentioned them, behavioral ads and discrimination will probably get the treatment, but she also hinted to me that the FTC’s renewed interest in kids’ privacy can be a guide.
- That could signal strategies like minimizing the collection of data, ensuring timely disposal and not using information for purposes other than those for which it was collected.
The other thing that comes next: so much pushback.
- The FTC’s two Republican commissioners have complained that Khan is making a power grab, invoking shaky powers and demonstrating her intellectual indebtedness to Marxism — all on the way to doing great damage to the U.S. economy.
- Business hasn’t been much happier. The U.S. Chamber of Commerce is threatening lawsuits.
- GOP lawmakers also may be displeased enough to try to punish the agency, which Congress has previously done (a few times) when the FTC tries to regulate industries.
All this is going on while Khan is probably also trying to:
- Launch that Amazon antitrust lawsuit, finally
- Keep the Meta litigation going
- Figure out what to do with Microsoft buying Activision Blizzard
- Deal with the gig economy and crypto scams
- Rewrite guidelines about what deals most concern enforcers (with nods to tech and workers)
And that’s just in tech. The economy still has lots of other sectors, and there’s also the small matter that the Supreme Court appears tempted to strike down huge portions of the agency’s structure. It’s going to be a busy, precarious time for the agency. Not everything will get done. But anyone who thinks that Khan’s just focused on the giants and that Congress will deal with data hasn’t been listening to what she’s saying.— Ben Brody (email | twitter)
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The FTC claimed that those crypto scams it’s been warning about “have an outsized impact on the LGBTQ+ community.” Happy Pride Month …Is it antitrust summer yet? A large coalition of consumer interest groups, digital rights groups, trade groups and businesses have launched a campaign pushing for Congress to act on the existing Senate antitrust bills before the ticking midterms clock runs down.
A MESSAGE FROM INTERNET FOR GROWTH
The idea that politicians could restrict cost-effective online advertising and marketing is daunting. These laws could potentially cripple the way small companies like ours do business in this ever-evolving digital age.
In the courts
Google has agreed to a $118 million settlement in a class-action gender discrimination case. The settlement covers about 15,000 women who worked for Google after September 2013; they were allegedly placed in lower-level jobs and who received fewer promotions than their male counterparts.
Grayscale CEO Michael Sonnenshein told Protocol about the scenarios he’s preparing for as the company seeks SEC approval for its bitcoin spot ETF — and explained why he hired one of Washington’s most prominent lawyers.
Around the world
In an attempt to mollify European antitrust enforcers, Amazon is offering to share some of its data with third-party merchants that sell through the site and even create a second “buy box” just for outside sellers, according to Reuters.
In the media, culture and metaverse
Private Facebook groups aren’t private at all, legally speaking, a federal court in Arizona has ruled. In an analysis, law professor Eric Goldman explained the court found the content of private Facebook groups to be "readily accessible" to the public. "Remember the stakes here," Goldman wrote. "The court says that an 'infiltrator' can join a Facebook group under false pretenses and quietly surveil the 'private' conversation ... it seems like there ought to be some legal protections here."
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A MESSAGE FROM INTERNET FOR GROWTH
Internet advertising has enabled us to grow our business to what it is today, but proposed regulations limiting advertisers’ ability to reach target audiences would hurt media publishers like us.
Last night, today
John Oliver brought his comedy-of-policy chops to the tech-antitrust debate. In a lengthy segment on Sunday night, the man who helped launch thousands of pro-net neutrality comments touted the Senate’s bill banning self-preferencing by tech giants and called out the firms’ lobbying. Supporters are hoping to bring the measure to a vote within weeks, and the companies are spending millions to stop it.
Thanks for reading — see you Wednesday!