FTC Announces Plans to Begin Important Privacy Rulemaking

WASHINGTON — On Thursday, the Federal Trade Commission opened its long-anticipated rulemaking on measures to stop corporations and other commercial actors from abusing people’s personal data. 

In June, the agency announced that it was considering this rulemaking to safeguard privacy and create protections against algorithmic decision-making that results in unlawful discrimination. Today it released an Advance Notice of Proposed Rulemaking (“ANPR”) on the topic. This is the first step in building a formal agency record for potential regulations that would be based on public comments about “commercial surveillance and data security practices that harm consumers.” 

The role of the ANPR is to ask questions and seek comments, not draw conclusions. But the notice lays out evidence already available in filings from groups like Free Press and in published news reports. It cites requests made by Free Press and allies that have petitioned the agency to make rules guarding against data-based civil-rights abuses. And it acknowledges that “companies’ growing reliance on automated systems is creating new forms and mechanisms for discrimination based on statutorily protected categories, including in critical areas such as housing, employment, and healthcare.” 

In May, the Senate confirmed the agency’s fifth commissioner, Alvaro Bedoya, an experienced privacy advocate who joined fellow Democratic appointees — FTC Chairwoman Lina Khan and Commissioner Rebecca Kelly Slaughter — in voting for today’s item.

Meanwhile, Congress is considering the American Data Privacy and Protection Act — a bipartisan bill that Free Press Action supports — which aims to establish a comprehensive national data-privacy and data-security framework. The legislation passed out of the House Energy and Commerce Committee last month with a 53–2 margin, and could move to the House floor once Congress returns from its August recess.

Matt Wood, Free Press Action vice president of policy and general counsel, said:

“The FTC’s announcement is tremendous news, and a much-needed formal start to a proceeding that has been percolating for quite a long time now. More than three years ago, Free Press Action helped lead the effort to refocus the privacy debate on corporate abuse of sensitive personal data that most impacts communities protected by civil-rights laws. We’re gratified to see the portions of today’s FTC notice that zero in on the need for protections against these kinds of violations. Chairwoman Lina Khan and her fellow Democratic commissioners Slaughter and Bedoya, who all voted the right way today, likewise stressed the need for new rules that would protect people’s civil rights in our digital economy.

“Those commissioners also got it exactly right when it comes to the topic of ongoing legislative processes. A strong bipartisan privacy bill has progressed remarkably far in the House of Representatives. If and when it passes, it could reshape the legal landscape and provide the agency with new mandates and powers. But the FTC still can and must move quickly to use the considerable authority it already has, not wait for Congress to pass something new when there is no guarantee that any bill will become law.

“It’s high time for the FTC to establish clear rules against data practices that undermine civil rights and sabotage access to opportunities. Through an open and participatory rulemaking, the FTC can build a record of the harms and establish guardrails against discriminatory and extractive data practices that disproportionately harm people of color. The need for protections against companies’ over-collection and retention of sensitive data has also come into stark relief as state prosecutors subpoena tech companies for private information about people seeking reproductive health-care information and services.

“For years, we’ve called on Washington to protect our personal data from misuse by big companies like Alphabet, Amazon and Meta, as well as smaller but no less nefarious data brokers. These companies manipulate and exploit data for their own gain, and also allow bad actors to spread disinformation and deprive people of access to vital information about employment, voting, housing, health care and educational opportunities. Now the FTC can move forward with a rulemaking that checks these abuses and affirms the integrity of online spaces for all.”