Gibson Dunn: The FTC at Full Strength: What to Expect Next

• Privacy Rulemaking. The Biden Administration has encouraged the FTC to establish rules on “corporate surveillance” and the accumulation of data.  In late 2021, the FTC officially announced interest in crafting a trade regulation rule under Section 18 of the FTC Act “to curb lax security practices, limit privacy abuses, and ensure that algorithmic decision-making does not result in unlawful discrimination.”[1]  Both Chair Khan and Commissioner Rebecca Slaughter have been in favor of far-reaching FTC privacy rulemaking, while Commissioners Noah Phillips and Christine Wilson have voiced concerns with the scope of potential privacy rules.  We may therefore see more momentum on FTC privacy rulemaking, especially if the Congressional stalemate on federal privacy legislation continues.  Chair Khan has expressed a preference for substantive limits on data collection rather than procedural protections, stating that procedural protections “sidestep[] more fundamental questions about whether certain types of data collection and processing should be permitted in the first place.”[2]

The FTC’s privacy rulemaking activities may also be informed by several petitions to curb corporate data practices—including, for example, the Electronic Privacy Information Center’s petition for rulemaking on artificial intelligence, Accountable Tech’s petition to deem targeted advertising as an unfair method of competition, the Center for Democracy and Technology’s petition for rulemaking to address purported civil rights abuses in data-driven commerce, Athena Coalition’s petition to ban corporate use of facial surveillance technology, and the Council on American-Islamic Relations’ petition for an FTC investigation of the use of location data.  The FTC’s activities may also be informed by the addition of new agency staff focused on algorithms, biometrics, and technology platforms.[3]

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