FTC Publishes Advanced Notice of Public Rulemaking

On August 11, the Federal Trade Commission published an Advanced Notice of Public Rulemaking regarding Commercial Surveillance and Data Security.  At the core of the Notice is a focus on data privacy of individuals, in particular privacy online and in the ad tech space.  In its own words, “the Commission invites comment on whether it should implement new trade regulation rules or other regulatory alternatives concerning the ways in which companies (1) collect, aggregate, protect, use, analyze, and retain consumer data, as well as (2) transfer, share, sell, or otherwise monetize that data in ways that are unfair or deceptive.”

The FTC bases this rulemaking authority on Section 5 of the FTC Act, which gives the Commission purview over unfair and deceptive trade practices.  The FTC cites that part of the ANPR will be to generate a public record of privacy practices that are unfair and deceptive.  To date the Commission has enforced unfair and deceptive privacy practices on a case-by-case basis, but with the lack of comprehensive federal privacy legislation, rulemaking promulgated by the Commission would be a mechanism to fill that gap. The ANPR has received partisan pushback, citing that Congress is the appropriate avenue for enacting federal data privacy legislation rather than through the FTC.

While this is the first step in the FTC’s process, and any FTC Rule is far from certain, the Commission’s next action is a public forum on September 8. 

A copy of the Notice may be found here.