The Feder-guson Trade Commission
Odia Kagan
CDPO, CIPP/E/US, CIPM, FIP, GDPRP, PLS, Partner, Chair of Data Privacy Compliance and International Privacy at Fox Rothschild LLP
The Feder-guson Trade Commission:? Respect (for Congressional Laws); Certainty and opportunity (for businesses), Free Speech and Protection from Misrepresentation and Substantial injury.
What will happen to the regulation of data privacy and AI after January 20, 2025 under a more conservative Federal Trade Commission (FTC) leadership? I carefully went through all (74) consenting and dissenting opinions of Republican Commissioners Andrew Ferguson (recently elected by President Trump to Chair the FTC) and Melissa Holyoak (so you don’t have to) to learn about the potential future direction and priorities of the FTC. Below are my conclusions.
Opinions my own.
Doesn’t constitute legal advice.
Read on.
Top 10 High Level TL:DR:
Dig in: General approach
“My colleagues want the FTC Act to be a comprehensive privacy law. But it is not. Comprehensive privacy regulation involves difficult choices and expensive tradeoffs. Congress alone can make those choices and tradeoffs. It did not do so when it adopted the general prohibitions of Section 5 nearly nine decades ago. And it has not adopted comprehensive privacy legislation since then. We must respect that choice. Until Congress acts, we should vigorously protect Americans’ privacy by enforcing the laws Congress has actually passed. But we must not stray from the bounds of the law. If we do, we will sow uncertainty among legitimate businesses, potentially disrupt the ongoing negotiations in Congress on privacy legislation, and risk damaging losses for the Commission in court.”? (Gravy/Mobilewalla, p. 5)
General approach: Cases brought: Can prove – will prove; Likes it, likes it not
“We must be choosy about how we commit the taxpayers’ resources and ensure that we get the biggest bang for their buck.” (SouthernGlazers; p. 27)
The Commission will likely be more choosy in what cases to bring.
In determining whether to bring an enforcement action Commissioner Ferguson has focused on: the interpretation of a specific law by the courts; whether the Commission is likely to prevail in litigation and; even if it were likely to prevail - whether bringing a given action is a prudent use of the Commission’s limited resources (SouthernGlazers; p. 18).
Cases will only be brought when the commission has reason to believe that Section 5 of the FTC Act (or other laws under its mandate) has been violated which is well grounded in evidence that the Commission gleaned from its pre-filing investigation, not based solely on a theory about hypothetical effects of a company’s conduct [Guardian, p. 4]. The filing has to be in the public interest. (Rytr, p. 1). Commissioner Holyoak agrees and states that “The Commission should steer clear of using settlements to advance claims or obtain orders that a court is highly unlikely to credit or grant in litigation” (Rytr p. 1) (Holyoak)
“The Commission, like all “unelected bureaucrats” may not “effectively suspend a law because [it] disagrees with Congress’s policy decision”. (SouthernGlazers; p. 20).
The FTC will enforce even laws that it doesn’t like.
Per Commissioner Ferguson: “The Executive Branch should not categorically and publicly refuse to enforce laws that Congress has passed and the President has signed. The separation of powers forbids the suspension of the laws merely because of a policy disagreement with that law. But the Commission must soundly exercise discretion about when to enforce a law.” (SouthernGlazers; p. 19). Commissioner Ferguson believes that change should be enacted through the passing of a different/better law by Congress.
General approach: Proactive rulemaking only with Congressional Authority
“The Commission under President Trump will focus primarily on our traditional role as a cop on the beat. We will vigorously and faithfully enforce the laws that Congress has passed, rather than writing them.”
The FTC will be less likely to engage in proactive rulemaking, unless there is a plain authorization by a valid grant of authority from Congress (HSR, p. 4).
Per Commissioner Ferguson: “Americans cannot vote us out when we get it wrong…Thus, whenever we undertake to make rules governing the private conduct of hundreds of millions of people who do not vote for us, we should not begin with determining what the right answer to the policy question is. Rather, we must first assure ourselves of the power to answer the question at all.? [noncompete, p 7- 8]. He believes that if the FTC strays from the bounds of the law it will sow uncertainty among legitimate businesses, potentially disrupt the ongoing negotiations in Congress on privacy legislation, and risk damaging losses for the Commission in court.”? (Gravy/Mobilewalla, p. 5).
Commissioner Holyoak agrees. Per Holyoak, Section 5 of the FTC Act, as drafted, does not authorize the FTC “to act as a roving legislator, writing law through complaints and settlement orders drafted to suit [its] purposes or political expediency? (Mobilewalla - Holyoak; p. 4)
“My allegiance is to the Constitution, not to the administrative state. The “direction” in which I wish to “steer” the Commission is towards the Constitution, rather than away from it. When the majority proposes sound policy consistent with the law, I will vote for it and defend it. When the majority violates the commands of Congress or of the Constitution, I will dissent and explain why. Dissenting in those circumstances is what my oath requires”. (H&R Block, 17)
When there is such authorization, the FTC will “engage in reasoned decisionmaking,” which requires that the “agency[’s] action … rest[ ] ‘on a consideration of the relevant factors.’”. It will “examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ This “standard is deferential” to the agency’s policy choices, so long as “the agency has acted within a zone of reasonableness and … reasonably considered the relevant issues and reasonably explained the decision (HSR, p. 4)
When the Commission does engage in rulemaking it will likely be formal and clear.
Per Ferguson the criteria must be clear to promote certainty for businesses and avoid potential gamesmanship and confusion (HSR FY2023, p 1). The Commission will likely steer away from ““the outer limits of [the text’s] definitional possibilities” and will not rely on “oblique or elliptical language,” or combines a series of “modest words, vague terms, or subtle devices” [noncompete, p 15]
Commissioner Holyoak concurs with this approach, saying that the Commission should not “use [its] enforcement powers To color outside the lines of the Commission’s authority in order to effectuate legislative and policy goals that rest on novel legal theories well beyond what Congress has authorized”. (Mobilewalla - Holyoak; p. 1). Per Holyoak: “Certainty and clarity about the state of the law is a critical incentive to investment in and formation of new business.? (Franchise Holyoak, p. 2)
“Recommending” that firms act or refrain from acting exceeds our authority and our expertise. We are not moral philosophers, business ethicists, or social commentators. We are a law enforcement agency ….When the government “recommends” that the firms it regulates do something, the “recommendation” is not a friendly suggestion…If we believe that the law requires firms to act or refrain from acting, we can undertake a rulemaking or enforcement action and defend it in court [Social Media, p. 14-15)?
The FTC will likely refrain from “recommending” that firms act or refrain from acting other than as instructions for compliance with the laws the FTC enforces.
Commissioner Ferguson regards the role of policy statements, circulars, dear-colleague letters, and memoranda only as nonbinding guidance on an agency’s understanding of the law or regulations. He believes that they can be useful to alert regulated entities of an agency’s enforcement priorities, or to provide practical suggestions for complying with settled law. (Franchise policy p. 2-3). Per Ferguson, anything else exceeds the FTC’s authority and expertise and is, effectively, “sub-regulatory guidance” to control private behavior without having to go through the rigmarole of rulemaking and judicial review and objects to it (Social media, p. 14)
Commissioner Holyoak concurs saying the Commission “should not dictate or otherwise seek to reshape private-sector conduct in a guidance document” (Social Media Holyoak, p. 5-6)
The Commission will likely continue conducting investigative reports pursuant to Section 6 of the FTC Act.
Commissioner Ferguson regards this as a “valuable tool in the agency’s policymaking toolbox” and believes such reports “contribute greatly to the Commission’s successes in serving the public interest”. (Pharmacy benefit managers. p2)
General approach: Deceptive practices: Continued enforcement but with strict interpretation of “deceptive”
“The question we must ask in any deceptive advertising case is whether the words an advertiser uses tend to deceive a reasonable consumer. We can often answer that question without resorting to empirical studies. In any interpretive community, words have shared meanings. If they do not, our language becomes a prison of endless confusion”? (Lyft, p. 10)
The FTC will likely continue to file complaints against misrepresentations but with an emphasis on adhering to the FTC’s Policy Statement on Deception (103 F.T.C. 174 (1984), https://www.ftc.gov/legal-library/browse/ftc-policy-statement-deception, appended to In Re Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984)) and ensuring that all prongs that constitute deception are met, namely: [1] a representation, omission, or practice, that [2] is likely to mislead consumers acting reasonably under the circumstances, and [3], the representation, omission, or practice is material. (Rytr, p. 3).
As some examples: Ferguson concurred with the Democrat majority on cases involving:
Commissioner Holyoak concurs and states: “I believe the Commission should redirect its efforts and resources toward enforcement against fraud and, only where appropriate, rulemakings that ensure the Commission can robustly prosecute fraud and provide consumers redress. (TSR Holyoak, p. 2)
Enforcement against data brokers will likely continue (when their practices are deceptive)
The risk to consumers of having their private data aggregated, linked to their identity, and sold without their consent, is substantial, not reasonably avoidable by consumers (as this conduct was far removed from their knowledge and control), and not outweighed by any countervailing benefits to consumers (Gravy/Mobilewalla, p. 3)
Per Commissioner Ferguson “Data brokers that purchase sensitive information cannot avoid liability by turning a blind eye to the strong possibility that consumers did not consent to its collection and sale. They must verify that the consumers who generated the data consented to the collection of those data by the applications that collected it. (Gravy/Mobilewalla, p. 2)
Ferguson concurred with the Democrat majority on cases involving:
Commissioner Holyoak also supports decisive action against data brokers: “Although I firmly believe that a comprehensive solution for the sale and disclosure of consumers’ geolocation information requires Congressional action, the Commission should not shy away from using all available enforcement tools in the interim to address the evolving practices in the location data broker industry. The Commission should also investigate how location data brokers share geolocation data about Americans with foreign or malign actors. And where the facts warrant it, the Commission should consider stronger injunctive remedies in those cases, including restrictions that prevent or impede the sale of geolocation data about Americans, especially our servicemembers and their families, to bad actors overseas? (Gravy p. 3 Holyoak)
General Approach: Fewer cases against Technology as such
The mere fact that someone could use a product to commit fraud does not make that product the means and instrumentalities to commit fraud. In my view, the provision of a product or service with potential unlawful uses is not the provision of the means and instrumentalities to violate Section 5 unless (1) the instrumentality in question “has no or de minimis legal use”; (2) the provider of the instrumentality had the purpose of facilitating the Section 5 violation; or (3) the provider “knows, or has reason to know, that the person to whom the product or service was supplied will use it to violate Section 5.” (Sitejabber, 3)
Per Commissioner Ferguson, Section 5 does not categorically prohibit a product or service merely because someone might use it to deceive someone else. He believes that interpreting Section 5 to prohibit products and services with conceivable illegal uses would prohibit an infinite variety of innocent and productive conduct and that this was not the intent of Congress. (Rytr, p. 5)
What about specific areas?
Sensitive data: focus on permissible collection and uses with countervailing benefits
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The law prohibits collecting data in unlawful ways; it does not prohibit drawing whatever conclusions one wants, or selling those conclusions to someone else, so long as the data from which the conclusions were drawn were lawfully obtained...the correct approach is to treat conclusions derived from user data as no different than the underlying data. (Gravy/Mobilewalla, p. 4-5)
Cases brought regarding sensitive data may focus on proper (full, accurate, human readable) just-in-time disclosure and consent.?
Per Commissioner Ferguson: “Lawfully obtained includes the requirement that the user: be informed of how their private information—part, and often all, of the consideration they give in exchange for use of the app or website—will be collected and used, and given a chance to decline the transaction. Commercial fairness might also require more than vague hidden disclosures, especially when the loss of privacy is substantial, as is the case with collection of precise location data and its sale to third parties”. (Gravy/Mobilewalla, p. 4)
The Commission will likely refrain from creating sensitive categories of data without an objective criteria to base this list on. ?
Per Commissioner Ferguson: “It is folly to try to identify which characteristics are sensitive and which are not. “[T]he list of things that can trigger each unique individual’s trauma is endless and would cover every imaginable” advertisement based on every possible categorization, so whatever lines we end up drawing will be “either arbitrary or highly politicized” (Gravy/Mobilewalla, p. 4)
The Commission will likely continue to bring cases regarding sale/disclosure of non-anonymized, precise location data without first obtaining the meaningfully informed consent of the consumer as it regards such conduct is an unfair act or practice in violation of Section 5. Commissioner Ferguson considers this type of data as inherently intrusive and revealing of people’s most private affairs. He considers the sale of such revealing information that can be linked directly to an individual consumer as posing an obvious risk of substantial injury to that consumer. This is because the theft or accidental dissemination of those data would be catastrophic to the consumer and because the consumer cannot avoid the injury since, unless the consumer has consented to the sale of intimate data linked directly to him, the sale of the data happens entirely without his knowledge. Also, given that the anonymized data remain valuable to firms for advertising and analytics, the injury that the consumer suffers is not outweighed by any countervailing benefits for the consumer. (Gravy/Mobilewalla, p. 1)
Commissioner Holyoak regards such use as a breach of trust that jeopardizes Americans’ freedoms. (Kochava, Holyoak, p 3)
Commissioner Holyoak sees importance in limiting the non-consented sharing of sensitive data to government entities as a protection against fourth amendment violations. She says: “Fourth Amendment rights should not be for sale, under any circumstances.. Constitutionally appropriate process, such as warrants or subpoenas, exists for law enforcement to obtain information it needs, without resorting to purchasing consumers’ precise geolocation data from unscrupulous location data brokers to circumvent judicial oversight? (Gravy p. 5 Holyoak)
?With respect to targeted advertising based on sensitive data, the Commission will be more likely to focus on one step earlier in the supply chain—the largely unregulated collection, aggregation, sale, and retention of consumers’ data that makes the targeted advertising possible. Commissioner Ferguson does I do not share the view that the display of targeted advertising to adults is, on balance, harmful, including targeting that is based on sensitive categories. (Targeted advertising to children and teenagers is another matter entirely.) (Social media, p 4)
“I am gravely concerned about the potential harms stemming from the sale of consumers’ geolocation data, and in certain instances, these harms may constitute a “substantial injury” under Section 5 of the FTC Act.7 , selling “precise geolocation information revealing political, medical, or religious activities, without consumers’ consent to willing purchasers, . . . breaches [consumers’] trust and jeopardizes Americans’ freedoms.” Thus, under these circumstances, the alleged sale of consumers’ precise geolocation information—data obtained from third-party suppliers without consumers’ knowledge and appropriate consent—meets the threshold for alleging “substantial injury” under Section 5” (Gravy p. 2-3 Holyoak)
Another emphasis may be on the context of sensitive categorization and whether it leads to deceptive advertising or harm contrary to expectation and whether it may have countervailing benefits (Mobilewalla Holyoak, p. 3).
Per Commissioner Holyoak “Certain types of categorization and targeting may offer similar benefits to consumers and competition, if used properly and in a lawful manner”…”For example, if a consumer searches online for nearby pediatricians close to their home, then serving ads in other contexts for pediatrician offices and groups based on the consumer’s location may be both reasonable and desirable. If a consumer subscribes to a podcast on a certain type of politics, advertisements for other political podcasts may be of interest to that consumer….” Or using a segment of “women over 50 suffering from breast cancer.” …to target ads for well-validated treatments, potentially connecting women with life-saving care. (Gravy p. 6 Holyoak)
Regarding targeted advertising generally- there will likely be less inclination to see it as something which is “on balance harmful”. Though, different treatment will continue regarding targeted advertising to children and teens.
Targeted advertising can offer significant benefits to website operators, advertisers, and consumers. For one thing, targeted advertising makes much of the internet possible. The reason so much of our online activity does not require the constant exchange of money is because of targeted advertising. If regulators and lawmakers attempt to ban or seriously curtail targeted advertising, they will be undoing the balance of the online economy. (Social media, p 3)
Per Commissioners Ferguson and Holyoak, because targeted advertisements are directed to the groups of consumers most likely to be interested in the advertised product in the first place, “targeting increases the value of advertising space for online service operators and can lower costs for advertisers by reducing wasted impressions. Those lower costs in turn can contribute to lower prices…Targeted advertising may also help promote competition”.? (Social media, p 4)
More free speech; less censorship:
“Censorship, even if carried out transparently and honestly, is inimical to American democracy. The Commission must use the full extent of its authority to protect the free speech of all Americans. That authority includes the power to investigate collusion that may suppress competition and, in doing so, suppress free speech online. We ought to conduct such an investigation. And if our investigation reveals anti-competitive cartels that facilitate or promote censorship, we ought to bust them up. (GOAT, p. 4)
The FTC will likely be active in the enforcement of free speech and will investigate, and take steps, both under Section 5 of the FTC Act and antitrust tools to address opaque, unpredictable processes for banning users and censoring content. Per Commissioner Ferguson, the Commission “must vigorously enforce the antitrust laws against any platforms found to be unlawfully limiting Americans’ ability to exchange ideas freely and openly. [It] must prosecute any unlawful collusion between online platforms, and confront advertiser boycotts which threaten competition among those platforms. (GOAT, p. 2)
The Commission will be less likely to bring claims against companies bringing to market a technology that helps people speak, quite literally”. Commissioner Ferguson dissented in a case where “The theory on which the complaint rests would permit the Commission to proscribe Microsoft Word merely because someone may use it to create a fake review, or Adobe Photoshop merely because someone used it to create a false celebrity endorsement. The danger this theory poses to free speech is obvious. Yet because the technology in question is new and unfamiliar, I fear we are giving short shrift to common sense and to fundamental constitutional values. (Rytr, 10)
The Commission will also likely be more skeptical about more content moderation as the ultimate solution to bias, including in AI. Per Commissioner Ferguson:
“There is reason to worry about bias at AI firms. We have witnessed it in real time. But the evidence demonstrates that AI safety bureaucrats are largely responsible for that bias. Creating more of these bureaucrats and giving them more power will not protect us against bias. It will make elite Silicon Valley political bias the gate through which AI must pass.? (Social Media, p. 13) … The better approach to protecting children online would be to empower parents rather than empower Silicon Valley (Social Media, p. 10)
Commissioner Holyoak agrees that the solution for problematic content does not lie in suppressing it: "When companies suppress dissenting views on controversial topics to avoid harm or otherwise protect users online, they effectively prevent the clash of competing information and diverse views. But grappling with such diverse views is vital for self-government in a democracy. 3 As history has shown, limiting debate about contested topics to prevent harm and promote safety can backfire, reducing our freedom and undermining our agency as citizens (Social Media Holyoak, p. 1)
The Commission will be less likely to require that companies redesign their algorithms or policies using disparate impact models for classes the FTC deems protected.
Commissioner Holyoak believes “such changes could affect that company’s “content recommendation[s]” or “content moderation” in ways that undermine free speech. And given how large technology companies, including social media companies, have tended to expansively apply concepts like avoiding “harmful content”—which in some quarters is a proxy for suppressing ideas considered too controversial and often inherently political—efforts to remove ideas or content that are harmful may undermine the pursuit of truth and ultimately reduce freedom”. (Social Media Holyoak, p. 2)
Privacy: Continued enforcement within the bounds of Section 5
“As we consider these types of difficult privacy questions in the future, it is of paramount importance that we challenge only unfair or deceptive conduct, supported by specific facts and empirical research, rather than demonizing the entire digital advertising industry.35 And until Congress acts to address privacy directly through legislation, it is vital we recognize and abide by the limited remit of the Commission’s statutory authority (Gravy. Holyoak P. 4)
The FTC will continue to enforce privacy violations that fall in scope for Art 5 of the FTC Act but will refrain from creating a comprehensive privacy law through enforcement. Commissioner Ferguson has stated that he personally supports a Federal privacy law, but “Congress alone can make those choices and tradeoffs” Since it? ”did not do so when it adopted the general prohibitions of Section 5 nearly nine decades ago. And it has not adopted comprehensive privacy legislation since then.. [the FTC] must respect that choice”. (Gravy/Mobilewalla, p. 5)
Commissioner Holyoak sees privacy as a vital policy topic, but maintains that “unless and until the Commission receives new authorities, [it] must follow the law as Congress actually wrote it, not as some Commissioners or the Bureau Director might amend it if they were elected legislators” (Mobilewalla - Holyoak; p. 4).
Data Retention Limitation:
It is a truism that data stored indefinitely is at a greater risk of compromise than data stored for a short period of time. But nothing in Section 5 forms the basis of standards for data retention (Gravy/Mobilewalla, p. 5)
As for data retention limitation, the FTC will be less likely to require retention limitation of data as part of “fair” processing. Commissioner Ferguson has stated that there is no basis in Section 5 of the FTC Act and Commissioner Holyoak questioned whether there are no countervailing benefits that consumers expect, such as optimizing predictive models, or better tailoring advertisements over time to particular consumers (Mobilewalla, Holyoak, p. 3)
This may not do much to change the significance of retention limitation (even without the US State laws or GDPR being in play) since as we knew even before the FTC decisions on CafePress etc, if the data is sensitive and gets compromised - you could have a bigger data breach or a PR nightmare on your hands].
AI: Can’t stop won’t stop – if deceptive
“When people use generative AI technology to lie, cheat, and steal, the law should punish them no differently than if they use quill and parchment. But Congress has not given us the power to regulate AI. It has tasked us with enforcing the prohibition against unfair or deceptive acts and practices. If our enforcement incidentally captures some AI-generated conduct, so be it. But we should not bend the law to get at AI. And we certainly should not chill innovation by threatening to hold AI companies liable for whatever illegal use some clever fraudster might find for their technology (Rytr, p. 9-10)
Enforcement against AI use by companies will not stop.
The Commission will likely continue to bring cases on AI if they fit within the parameters of deceptive conduct like “AI washing”. It will also enforce existing laws against illegal conduct when it involves AI no differently than when it does not.? (Social Media, p. 11). For example, Commissioner Ferguson Supported, without reservation, enforcement against a company for grossly misrepresenting the performance, and accuracy of its AI product. (Intellivision, p. 1). He also concurred in holding responsible businesses that exploit media hype and consumer unfamiliarity with this new technology [AI] to cheat people out of their hard-earned money should expect a knock on the door from the Commission and other law-enforcement agencies (DoNotPay, 1) and stated that generative-AI companies should be held to the same standards for honest-business conduct that apply to every industry (DoNotPay, 2).
The Commission, however, will be less likely to fault companies for using “algorithms, data analytics, or AI” that “prioritize[] showing content that gets the most User Engagement (view time, likes, comments, or content that is trending or is popular).” (Social Media, p. 8) In addition, the Commission is less likely to launch conduct AI regulation that exceeds those parameters, absent a clear Congressional mandate.
Per Commissioner Ferguson:
“The Commission’s aggressive move into AI regulation is premature…. Generative AI technology is impressive, but it is also nascent. Neither its naysayers nor its cheerleaders really understand its potential….That ignorance is not a reason to plunge headlong with aggressive regulation. It is a reason to stay our hand. As our country has always done, we should give this industry the space to realize its full potential—whatever that turns out to be…There has never been a better place in the world to have a new idea than the United States. We should go to great lengths to ensure that remains the case” (Rytr, p. 9)
He believes that? “A time may come when comprehensive federal AI legislation would be appropriate. But as it stands, neither AI’s creators nor its would-be regulators really understand it. Imposing comprehensive regulations at the incipiency of a potential technological revolution would be foolish”.? (Social Media, p. 11). He also maintains that the FTC “should not succumb to the panicked calls for the Commission to act as the country’s comprehensive AI regulator”. (DoNotPay, 2)
Children: Continued vigorous enforcement of COPPA and protection of children
“Protecting children online is at the core of what the Commission should be doing, per its statutory mandate. Section 5 of the FTC Act charges the Commission with protecting consumers from unfair or deceptive practices…Deception is most likely and the risk of substantial injury at its greatest where kids are involved. With their delightful tendency towards magical thinking and their (sometimes less delightful) appetite for risk, children, tweens, and young teenagers are easy prey for unscrupulous actors … During my tenure at the Commission, I will encourage the Commission to devote its resources to its core mission – stopping fraud and protecting the most vulnerable among us” ?(NGL Holyoak pl 1-2)
The Commission will continue to vigorously enforce COPPA, which Commissioner Ferguson sees as some of its more valuable work. He sees the dangers that data collection, aggregation, disclosure, and retention pose for adult consumers as more severe for children. The Commission may, however, engage in fewer far-reaching interpretations of COPPA including deeming a data driven probabilistic determination of a child’s age as “actual knowledge”. Instead, Ferguson urges congress to take action (and it may will do under KOSA and COPPA 2.0) (Social media, p.? 7-8)
Commissioner Holyoak supports the Commission’s use of civil penalty authority where Congress has granted it, such as with respect to… the COPPA Rule. (Lyft? - Holyoak p, 4)
The Commission may take a stricter view of procuring parental consent. ?
Commissioner Ferguson noted that he doesn’t see anything “in COPPA’s text that limits parents’ statutory right to notice and consent when their children are online at school, nor anything suggesting the creation of a federal-law agency relationship between parents and anyone else. Indeed, because COPPA preempts inconsistent state laws, it may require website operators to obtain consent from parents even if state law otherwise authorizes schools to act on behalf of parents regarding the purchase of software” (IXL, p. 2)
It would also be less likely to go after the marketing of anonymous messaging services, including to children.
Per Commissioner Ferguson: “Anonymous speech is a right protected by the Speech Clause, and the Speech Clause protects children’s speech (if not necessarily to the same extent as an adult’s speech). Interpreting Section 5—or any law—to deny anonymous messaging apps to minors categorically would create grave constitutional concerns. We should not interpret Section 5 to create those concerns”.? (NGL, p 2-3)
Employees are (still) people too
The FTC will likely continue bringing cases to protect employees and workers and to the furthest extent the law allows. But the cases that will be chosen will be ones where the FTC will be likely to win important legal cases that create binding precedent and change business conduct.
Technology: Focus on actual use rather than potential
The FTC will likely file fewer cases against companies for bringing to market technologies due to the mere fact that someone could use them to commit fraud (unless the tool /product in question has no, or only de minimis, legitimate uses) and in the absence of proof of knowledge of use of the product for unlawful purposes (Rytr, p. 6).