FTC Is Exploring Ways to Crack Down on Big Tech's Obsession With User Data

Despite years of tech companies tracking users, gathering data on their online activities and selling it for profit, few government entities have done anything The Federal Trade Commission is thinking that it could become the lone crossing guard on the 80 MPH highway that is big tech's data gathering operations.

The FTC said in a Thursday release that it was creating an "advance notice of proposed rulemaking" to explore whether it will crack down on companies' data gathering practices. Digital privacy experts and former regulators would be included in the gathering of comments.

Data brokering is defined by the agency as the sale of people's personal information. It was mentioned by the FTC that mass collection of user data has made hacks and data breeches worse.

There will be an online public forum on September 8. There is a need for a robust public record to inform whether the FTC should issue rules to address commercial and data security practices.

In a Thursday press conference, Democratic FTC Commissioners said they weren't looking to replace congressional legislation, but Commissioner Rebecca Slaughter said the legislative process is "full of uncertainties."

The FTC admitted they are limited by their inability to seek financial penalties for initial violations due to a Supreme Court ruling. The latest move is to see if the agency needs a new policy under the consumer protection directive that would subject companies to civil penalties if they violate any new rules. Sam Levine, the FTC director of consumer protection, said that in order to make a new ruling, they need to show that there is deceptive or unfair trade happening in the marketplace.

The chair of the FTC said that making rules can move them away from case-by-case enforcement.

Khan is a critic of technology. She came to prominence after she wrote papers about the need to restrain Amazon. She has been an advocate against big tech mergers, however she has not been able to stop them. The agency claims to have brought hundreds of enforcement actions against companies for violating data use laws.

The growing digitization of our economy, coupled with business models that can encourage endless hoovering up of sensitive user data and a vast expansion of how this data is used, means that potentially unlawful practices may be prevalent.

The agency was concerned about the way companies made it difficult for users to avoid handing over their data. Regulators are looking at ways to make companies' data collecting practices more transparent since they can cause real harm to people.

Personal data is a priority for Biden. During his last state of the union address, he said it was time to strengthen privacy protections, ban targeted advertising to children, and demand tech companies stop collecting personal data on our children.

But Congress Already Has its Own Plans for Data Privacy

The announcement puts it in contention with congressional legislation. The House Committee on Energy and Commerce advanced comprehensive privacy legislation after five years of negotiation. The American Data Privacy and Protection Act focused on minimizing the amount of data companies are allowed to collect and carefully navigates two areas of contention.

State privacy laws are a necessity for most pro-business Republicans, but the ADPPA adopts a "covered" scheme which allows states to pass laws on topics not specifically addressed in the bill. There are a number of exemptions that would apply to any medical, banking, or surveilling related laws. The bureau of privacy would be created under the direction of the FTC.

The lack of punitive damages is one of the weakest points in the bill, while acknowledging that the Supreme Court has effectively kneecapped the ability to lawsuit over privacy violations. Two recent rulings around the doctrine of standing have limited civil action to people who can claim an injury in fact, which is to say, harms that are concrete.