FTC’s Slaughter, Wilson Support Ad, Data Collection Study
Commissioners Rebecca Kelly Slaughter and Christine Wilson support the FTC studying advertising and data collection practices. Speaking to reporters after a Monday Brookings Institution event, they recommended another FTC Act Section 6(b) study. Slaughter said the commission is in active discussions about an ad-related data collection review.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
A 6(b) study, which carries subpoena authority, allows the commission to request nonpublic information from companies. The commission initiated such a study on broadband provider collection and sharing of user data in March (see 1903270055), prompting questions why the FTC wasn’t taking a similar approach with the tech industry. The agency said in April it can do multiple 6(b) studies (see 1904120062).
“I think that we are in active discussions among the commission about the best way to deploy our 6(b) authority in the data space, and I look forward to us doing it,” Slaughter told reporters. She highlighted the monetization aspects of data collection: The money “is a really, really important aspect of this that sometimes gets lost when we’re talking about privacy.”
Wilson said it would be “absolutely” helpful to study data collection, including how it's used, shared, monetized and how it relates to algorithms and content moderation. “That entire business model is something that’s incredibly relevant to the enforcement actions that we’re looking to undertake,” Wilson said. “The more information that we have in that space, the more informed and nuanced and sophisticated our enforcement will be.”
Slaughter doesn’t have concerns the FTC has been captured by those it oversees. Fellow Democrat Rohit Chopra warned of regulatory capture, in general, at a recent House Antitrust Subcommittee hearing (see 1910180045). “I have never thought that the agency was captured by any particular company or agency,” Slaughter said. The FTC has jurisdiction over broad swaths of the economy, so it’s at less risk of capture, but it should also be on the lookout, Slaughter said. Wilson agreed.
It’s not clear that treating data as private property would help the agency achieve its enforcement mission, Wilson said. The Senate Banking Committee recently debated the prospect at a hearing (see 1910240048). Wilson said she has had conversations over several months on the topic with DOJ Justice Programs Office Enterprise Architecture Director Peter Nguyen. She’s not convinced data property rights would be beneficial to the FTC.
The commission's the proper data privacy protection agency, both commissioners said when asked about the prospect of creating a bureau or agency to police the tech industry. Independent data privacy authorities lack antitrust authority, Slaughter said, recommending more collaboration between the Consumer Protection and Competition bureaus. It wouldn’t serve the taxpayer to create a new agency, Wilson said. The FTC has developed the proper expertise over the years and deserves more resources to police privacy, Wilson added. The commission needs more technologists, Slaughter said.
Privacy legislation should boost transparency about industry data collection practices, Wilson said: Without more transparency, consumers aren’t properly informed about notice and consent. Slaughter suggested the first step for privacy legislation should be to define “reasonable.” For instance, it’s not reasonable that a flashlight app can collect users' location data without informed consent, Slaughter said.
Slaughter would have preferred the FTC had litigated in court with Facebook over its $5 billion privacy settlement because judicial review allows transparency. New information about the company might have had more deterrent effect on Facebook, she said. Wilson is sympathetic to the value of transparency. She agreed with other Republicans that a long, drawn-out court battle mightn't have delivered immediate benefits for consumers.