Protocol | Policy

The FTC's next privacy move is a dangerous game years in the making

Tech's de facto regulator has been taking half measures for decades as Congress fails on data protection. That might soon change.

FTC chair Lina Khan

The FTC has been clearing the way to issue more rules governing whole industries.

Photo: Graeme Jennings/AFP via Getty Images

After many years of "concerns" and false starts, the FTC appears poised to tell tech companies what they must do — and stop doing — to protect consumer privacy.

Crafting actual privacy rules is an ambitious undertaking that has eluded Congress for more than a decade. But the FTC, under new chair Lina Khan, seems ready to regulate most of the digital services industry and a good chunk of the "offline" world to boot. If history's any guide, any move is sure to spur furious pushback that could endanger even the FTC's basic powers.

It's also something that Khan and the other two Democrats on the commission have been readying for months, after years of half-measures by the agency charged by default with regulating Big Tech.

The Wall Street Journal reports that the commission is considering opening a new rulemaking procedure, likely using its authority to regulate specific "unfair or deceptive acts." The new rules would allow the commission to act without waiting for Congress to decide on an approach for certain fraught issues, such as whether tech platforms should face consumer lawsuits for privacy violations.

"There are now some pretty good indications that the Federal Trade Commission is going to have, or begin, rulemaking on privacy," said Sen. Richard Blumenthal, who led Democratic colleagues in a letter urging a rulemaking in September, during a hearing soon after the Journal report. "This development would be very, very welcome."

New, privacy-specific rules would be a far cry from how the FTC has dealt with Big Tech's practices in the past. For the history of modern tech as we know it, the agency's approach has been a narrow one. Essentially, the FTC has focused on a few high-profile companies that appeared to be lying to users about their privacy practices, then reached settlements with those firms saying they could face large fines for future violations where a company's actions didn't match its consumer-facing statements. If one of those companies was later found to be violating the terms of those settlements, the FTC was then able to extract actual money — such as the agency's $5 billion total fine on Facebook in the wake of the Cambridge Analytica scandal — and promises of future better behavior.

That emphasis on repeat offenders is written into the law, but the focus on the worst conduct from the biggest players is an outgrowth of budget constraints. To the FTC's credit, chairs from both parties have long sought the ability to punish companies the first time they break the law, as well as for more resources from Congress.

But until now, the idea of the FTC forcing the whole industry to abide by privacy rules appeared to be unfathomable, outside of children's privacy. As recently as last year, an in-house FTC report called the commission's rulemaking powers, which are more time-consuming than other agencies', "an imperfect tool for the rapidly evolving space of data privacy." The FTC pleaded for Congress to do the work that voters demanded — maybe giving the agency some expedited power to adjust technical definitions in the process — but commission leadership essentially ignored the possibility that it could take over the whole project.

That appears to have changed in recent months. Even one of the FTC's Republican commissioners, Christine Wilson, testified before Congress in July that she "had become more receptive" to FTC rulemaking on privacy "to address the information asymmetry between the providers of goods and services and their users," though she also said her doubts had grown again because of how Khan has run the commission.

Advocates of FTC-only action largely still would prefer that Congress take the lead, but they're increasingly unwilling to wait around for lawmakers to pass a bill.

"Congress just hasn't done its job," Justin Brookman, head of tech policy for Consumer Reports, said in a tweet. He cited a failed privacy bill from the year 2000 to make his point, calling for the FTC to jump into the rulemaking process.

Blumenthal likewise said Congress had "failed abjectly to fulfill its responsibility" and said "the FTC is supposed to fill gaps," such as the absence of broad federal privacy rules.

Laying the groundwork

Within her first few weeks as chair, Khan, a vocal tech skeptic, began to clear a path so the FTC wouldn't have to wait much longer. In July, during the first of the public meetings that she instituted, Khan and the Democrats voted to streamline the FTC's procedure for rulemaking, although it remains particularly cumbersome. Her fellow Democratic commissioner Rebecca Kelly Slaughter, who had pushed for more rulemaking before Khan joined the commission, argued during the meeting that Congress' grant of regulatory authority sent "a clear directive to the FTC to promulgate trade rules to protect consumers in the dynamic and changing economic landscape."

When the FTC voted to streamline its rulemaking in July, it also moved to broaden its powers to police "unfair methods of competition," and floated the possibility of new rules on the issue. And Congress is considering $1 billion for a privacy bureau at the FTC.

Shortly after Khan took over as chair, President Joe Biden issued an order urging the FTC to tackle competition, including attention to "unfair data collection and surveillance practices that may damage competition, consumer autonomy, and consumer privacy."

Since then, Khan has also made clear her first task as chair is to understand not just what tech companies want to talk about, but the underlying business models and incentives that truly drive them, such as Facebook's roaring advertising business that sucks up so much user data.

Biden in September also nominated privacy hawk Alvaro Bedoya to join the commission, now that Democrat Rohit Chopra is leaving to head up the Consumer Financial Protection Bureau. Accountable Tech, a Democratic-allied group that's been critical of the industry, also recently formally petitioned for rulemaking on "surveillance advertising" — casting the technology that powers Big Tech companies like Google as a threat to competition.

Despite this seemingly broad support, however, any FTC effort will face plenty of headwinds. The potential avenues for regulating privacy are immense, ranging from ads and children's privacy to connected devices' listening techniques, health apps, data brokers, the civil rights implications of algorithms, computer hacks and even the competitive dynamics affecting privacy. Brick-and-mortar retailers have even become enmeshed in online privacy debates if they have ecommerce sites. Each of these issues, by itself, has stymied the commission for years — let alone any attempt to roll them up together.

The opposition is also coming from inside the house. In a joint opinion piece on Wednesday, the FTC's other Republican commissioner, Noah Phillips, and two top Republican lawmakers who have been working on privacy legislation called any potential privacy rulemaking "blatant overreach that would almost certainly invite legal challenges."

"The legislative process may be slower than some would prefer, but that is no basis for executive agencies to usurp the people's elected representatives and the powers granted them by the Constitution," wrote Phillips, Sen. Roger Wicker, and Rep. Cathy McMorris Rodgers.

Litigation could tie up any new rules up for years, but from the commission's perspective it may be the lesser evil as compared to drawing ire from Congress. Critics of FTC inaction trace the agency's timidity to the 1980s. At the time, many saw the FTC's attempts to regulate children's advertising as the height of nanny-state overreach, in part thanks to a campaign by advertisers. In response to "kidvid," Congress reined in the agency's regulatory powers — and in the process taught generations of FTC staff to tiptoe around lawmakers.

It's a cycle that's recurred throughout FTC's existence, and Khan, who loves the agency's history, has made clear she's well aware of it.

Her colleagues, too, seem well aware that the clock is ticking: In a speech earlier in October, Slaughter discussed online ads and pushed the idea that companies should only collect data necessary for their offerings.

"I am confident that it is time for us to start asking the questions and developing the record, before the practices about which we are concerned become even more entrenched," she said. "The market is changing whether we promulgate rules or not."

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