FTC Is Moving Forward on Privacy Rulemaking

 

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Privacy, Technology and Perspective

FTC Is Moving Forward on Privacy Rulemaking:  While continuing to urge Congress to enact privacy and data security legislation enforceable by the U.S. Federal Trade Commission (“FTC”), the FTC has announced that it is “considering” moving forward with regulation in the meantime. On December 10th, the FTC filed an “Advance Notice of Proposed Rulemaking” (ANPR) with the Office of Management and Budget, dated for February 2022. 

What is an ANPR?: An ANPR is a “heads up,” indicating that very soon the agency will either begin soliciting comments from industry and other stakeholders on the topics listed in the ANPR, or will move straight to a rulemaking procedure.

Topics: The subject matter of its December 10th ANPR indicates that the FTC has three (3) objectives: to “curb lax security practices, limit privacy abuses, and ensure that algorithmic decision-making does not result in unlawful discrimination.” 

How this relates to Congressional action: As recently as three months ago the FTC was continuing to urge Congress to enact data privacy and security legislation that would be enforceable by the FTC, including expanding its civil-penalty authority, rulemaking authority, and jurisdiction; and there is nothing to indicate the FTC has abated those views. You can read the FTC’s September 13, 2021, Report to Congress here: 

https://www.ftc.gov/system/files/documents/reports/ftc-report-congress-privacy-security/report_to_congress_on_privacy_and_data_security_2021.pdf

Meanwhile, however, the Magnusson-Moss Act (15 USC §57a) already gives the FTC strong authority to prohibit particular acts and practices that are deceptive or unfair. Its new privacy ANPR suggests that the FTC may well do so, on the three topics it identifies. 

You can read the FTC’s new privacy ANPR by clicking on the following link:   

https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202110&RIN=3084-AB69

The Significance of “Nonsignificant:” Sharp eyes will notice that the ANPR’s “Priority” is listed as “Substantive, Nonsignificant.” Translated from the budget-ese, this means only that any resulting legislation is expected to have an impact on the economy less than $100 million. For more detail, see the following: 

https://www.federalregister.gov/documents/2020/10/05/2020-20799/rulemaking-and-guidance-procedures

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Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠

 

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