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Volume XII, Number 272

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Federal Trade Commission Initiates Privacy Rulemaking to Curb Commercial Surveillance

In a long-anticipated action, the Democratic-led Federal Trade Commission voted 3-2 on a party-line vote to issue an Advanced Notice of Proposed Rulemaking, which seeks to limit “commercial surveillance.”  The FTC asks if new rules are needed to protect against the “business of collecting, analyzing, and profiting from information about people.”  Specifically, the Commission seeks comment regarding how businesses (1) collect, aggregate, protect, use, analyze, and retain consumer data, as well as (2) transfer, share, sell, or otherwise monetize that data in ways that are unfair or deceptive.

The rulemaking would formally establish uniform privacy and data security requirements and provide the Commission the authority to seek financial penalties against first-time violations.  The August 11, 2022 action came with mixed reactions from Congress, which currently has data privacy legislation in the Senate Chamber.  House Energy and Commerce Committee Republican Leader Cathy McMorris Rodgers (R-WA), criticized the vote and stated that action “should be achieved by the American people speaking through their elected representatives and not through executive action.”  Frank Pallone (D-NJ), Chairman of the House Energy and Commerce Committee, appreciated the FTC’s action, but agreed with his Republican colleague that ultimately, “Congress has a responsibility to pass comprehensive federal privacy legislation.”

Chairwoman Khan recognized the sentiments of congressional members in a Twitter thread and stated, “[i]f Congress passes a strong federal privacy law—as I hope it does—then we’d reassess the value-add of this work and whether it remains a sound use of resources.”  In the meantime, the FTC has begun its rulemaking process.  However, the FTC’s complex rulemaking process can take upwards of six years, so don’t expect a final rule to be published any time soon. The public will have the opportunity to submit comments sixty (60) days after the notice is published in the Federal Register. The FTC will also be hosting a virtual public forum on September 8, in which the public is welcome to make remarks.

Copyright ©2022 Nelson Mullins Riley & Scarborough LLPNational Law Review, Volume XII, Number 224
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About this Author

Steven A. Augustino Litigation Attorney Washington DC Nelson Mullins
Partner

Steve’s practice ranges from regulatory, legislative, and administrative law counsel to transactional advice, advocacy, and litigation. His practice focuses on USF contributions, E-rate and Universal Service audits and investigations. He also is a leading practitioner in anti-robocall technologies and Telephone Consumer Protection Act (TCPA) matters. For over 25 years, he has guided clients through the shifting policies

202-689-2947
John J. Heitmann Washington D.C. Communications Lawyer Nelson Mullins
Partner

John is a leading advocate for mobile wireless service providers participating in the Federal Communications Commission (FCC) administered Lifeline and Affordable Connectivity Programs. He also counsels international and domestic entities ranging from start-ups to the industry giants on regulatory strategy involving new business models and product offerings, policy, and compliance at the federal and state levels. He advises communications and technology clients on complying with the Communications Act, the Federal Trade Commission Act, and other federal and state laws...

202-689-2945
Tammy Berkhoudt Corporate Privacy and Cybersecurity Attorney Nelson Mullins Riley & Scarborough Law Firm Atlanta
Partner

Tammy is a trusted advisor to businesses navigating privacy and cybersecurity concerns. She assists in compliance with privacy laws including CCPA/CPRA, GDPR, TCPA, HIPAA, and GLBA. She collaborates with organizations at all levels, from IT teams to Directors, to help them achieve their business goals and develop strong and secure relationships with their partners. Tammy also assists in developing and executing compliance programs, privacy policies, data processing agreements, and understanding and implementing security protocols, including those required for data transfers from the...

404.322.6036
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