Articles

28Nov

Congress Should Drive Federal Privacy Regulation, Not FTC, Urge Data-Driven Industry Groups

The Insights Association (IA) and a dozen other data-driven industry groups called upon Congress to “pass a national privacy law that protects all Americans,” and urged the Federal Trade Commission (FTC) to “halt its current rulemaking” on “so-called ‘commercial surveillance’ and ‘lax security practices.’”

At the same time, Privacy for America warned that the “FTC should not cast itself as a quasi-legislature capable of regulating any activity it sees fit without a grounding in its congressionally granted authority. The more prudent path would be for the Commission to refrain from seeking broadly to regulate the entire U.S. data-supported economy while Congress is actively considering a comprehensive, preemptive standard.”

The comments came on November 21, 2022 in response to an FTC Advanced Notice of Proposed Rulemaking broadly covering consumer data privacy and security, including in the insights industry. As part of the notice, the FTC defined “commercial surveillance” as “the business of collecting, analyzing, and profiting from information about people.”

According to the comments filed by IA and the other business groups, “[e]very company in America, small and large, is using data to help them solve everyday business decisions and more efficiently deal with economic challenges like inflation and supply chain shortages… Given the critical importance of data to societal welfare and global economic competitiveness, it is imperative that policymakers create an environment of certainty for the business community and consumers alike,” which the FTC’s proposal sadly “fails to provide.” Their comments noted that the agency lacks the authority to set a national privacy standard, warned that unilateral FTC action along these lines "would complicate the existing patchwork of state privacy laws," and lamented that the FTC appears to be on a "fishing expedition" rather than following regular process.

(The FTC did at least extend the comment period a little longer, as requested by IA.)

Privacy for America, a coalition that IA helped to found in pursuit of a federal privacy law, urged the FTC to, at least, “narrow the focus of its Privacy ANPR to areas within its expertise, jurisdiction, and statutory grant of power as well as to practices shown by the FTC’s own enforcement history to be prevalent and unfair or deceptive.” The coalition’s extensive comments focused on: “(1) the statutory deficiencies that exist in the Privacy ANPR and how those impact the rulemaking process; (2) the statutory and constitutional limits that restrict the Commission’s rulemaking authority; (3) how the FTC should analyze potential harms and injury related to data privacy as well as how many practices outlined in the Privacy ANPR do not pass muster under the analysis we outline; (4) the myriad benefits the data-driven economy delivers to consumers and businesses, which the Commission omitted from the Privacy ANPR; and (5) the importance of a reasonable and flexible risk-based data security framework.”

The Insights Association will continue to advocate in Washington, DC, along with Privacy for America, for a comprehensive consumer data privacy bill setting a strong national baseline privacy protection for consumers that would still allow for the vigorous delivery of insights.

Read the comments sent by IA and other aligned business groups and the comments from Privacy for America.

About the Author

Howard Fienberg

Howard Fienberg

Based in Washington, DC, Howard is the Insights Association's lobbyist for the marketing research and data analytics industry, focusing primarily on consumer privacy and data security, the Telephone Consumer Protection Act (TCPA), tort reform, and the funding and integrity of the decennial Census and the American Community Survey (ACS). Howard has more than two decades of public policy experience. Before the Insights Association, he worked in Congress as senior legislative staffer for then-Representatives Christopher Cox (CA-48) and Cliff Stearns (FL-06). He also served more than four years with a science policy think tank, working to improve the understanding of scientific and social research and methodology among journalists and policymakers. Howard is also co-director of The Census Project, a 900+ member coalition in support of a fair and accurate Census and ACS. He has also served previously on the Board of Directors for the National Institute for Lobbying and Ethics and and the Association of Government Relations Professionals. Howard has an MA International Relations from the University of Essex in England and a BA Honors Political Studies from Trent University in Canada, and has obtained the Certified Association Executive (CAE), Professional Lobbying Certificate (PLC) and the Public Policy Certificate (PPC). When not running advocacy for the Insights Association, Howard enjoys hockey, NFL football, sci-fi and horror movies, playing with his dog, and spending time with family and friends.

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