On August 11, 2022, the Federal Trade Commission (the FTC or the Commission) published an Advance Notice of Proposed Rulemaking (ANPR) to request public comment on the prevalence of “commercial surveillance and data security practices that harm consumers.” This is the first concrete step by the agency to explore using its Section 18 rulemaking authority under the FTC Act to issue a broad consumer privacy-focused trade regulation rule. This is an important first step in a lengthy process, as it identifies the key areas of focus for the FTC commissioners. Below we provide an overview of some of our key takeaways from the ANPR, highlight the topics the FTC is focused on, and then outline next steps for the Commission as well as for our clients that are interested in participating in the rulemaking process.
We encourage companies to think about these issues carefully—this is an important step in the process of developing a potential broad overall privacy rule. At the same time, the FTC clearly is signaling concerns with specific practices it may seek to examine and has framed many of the questions in a somewhat adversarial manner that seems to presume negative impacts from specific kinds of data processing activities.
