Congress is getting closer to some kind of agreement on how it wants to regulate data usage, but FTC Chair Lina Khan told Protocol that companies will still have to contend with her agency’s powers as well.
Khan welcomed an agreement struck last week by three of the four congressional negotiators on a privacy bill, calling it “incredibly exciting to see Congress take this important step.” The FTC chair made clear, however, that she feels the agency shouldn’t pause its agenda just because of the congressional push.
“While this effort is pending, we're also of course fiercely committed to using all of our existing tools, enforcement and policy — doing anything we can to make sure Americans are fully protected,” Khan said.
Khan, who is coming up on the end of her first year in office, has long been preparing to write regulations that would ban the collection of certain kinds of data, as well as tackle algorithmic discrimination. She’s also complained repeatedly about behavioral advertising.
“We need to be very clear-eyed about the fact that the behavioral ad-based business model creates a certain set of incentives that are not always aligned with people's privacy protections,” she said.
To Khan, this work — which would likely rely on the commission’s existing power to regulate specific "unfair or deceptive acts” — should proceed even while Congress weighs its own approach to data protection. In their recent draft, lawmakers propose dramatically expanding the FTC’s role in digital privacy. The bill would give the agency power over what kinds of sensitive data need the most protection, a say in how companies can minimize the information they collect and oversight of data relating to kids and teens. The FTC’s role in the bill, however, is part of the reason the measure would give consumers only limited rights to sue companies, and at least one key senator, Democrat Maria Cantwell, is still withholding her support for the draft over the issue.
Available legislative days are also rapidly dwindling on Capitol Hill, making it more likely the U.S. will continue without a national privacy law for years to come.
Still, many Democrats in particular would like to see the FTC act on data. A number of Democratic senators recently wrote to Khan, for instance, asking the FTC to help ensure protections for the data of people seeking information about abortion. The letter cited the likelihood that the Supreme Court will soon overturn a federal right to abortion and the fact that many consumers rely on health and location-based apps that could give law enforcement and anti-abortion activists personal information about people seeking to terminate pregnancies.
“We take very seriously the fact that there are now all sorts of technologies that Americans rely on to navigate everyday life that have either business models that are endlessly surveilling them or that are collecting that data and then selling it on secondary markets,” Khan said. “Inasmuch as existing laws and our existing tools cover some of those practices, we're going to be taking action.”
Despite the coming anniversary of her tenure, Khan’s agenda is only just now really getting started. Alvaro Bedoya joined the FTC as its third Democratic commissioner less than a month ago, and his votes are likely needed to kick off any privacy rulemaking, both because of his career focus on the issue and because the possibility of expansive rulemaking has alarmed big business groups and the FTC’s two Republican commissioners.