FPF Comments Regarding FTC ANPR Urge the Commission to Provide Individuals with Strong, Enforceable Rights and Companies with Greater Clarity about their Obligations under Section 5 of the FTC Act.
The Future of Privacy Forum filed comments regarding the Federal Trade Commission’s Advance Notice of Proposed Rulemaking, recommending that the Commission prioritize practical rules that clearly define individuals’ rights and companies’ responsibilities.
The Commission has spent decades enforcing prohibitions against unfair and deceptive data practices regarding a wide range of established and emerging technologies. Those privacy and security enforcement actions have been based on the FTC’s statutory authority, which provides flexibility to address consumer harms arising from novel technologies and business practices, but which does not articulate granular rights for consumers or requirements for businesses. Clear, practical rules can more specifically define what data practices the Commission considers unfair or deceptive. The current FTC rulemaking is an opportunity to provide individuals with strong, enforceable rights and companies with greater clarity about their obligations under Section 5 of the FTC Act.
FPF’s comments urge the Commission to:
Codify its “common law” privacy and security norms. FTC enforcement actions are often viewed by practitioners as precedent or guidance. But settlements and consent decrees do not provide explicit, comprehensive rules that companies must follow and upon which consumers can rely. The Commission should codify key aspects of its deception and unfairness settlements while also incorporating lessons from FTC staff reports, workshops, privacy laws, self-regulatory regimes, and commercial best practices. Specifically, the FTC