Ex-FTC Enforcer Sees Laxer Privacy Approach Under Ferguson
Expect the Trump administration’s FTC to take a less aggressive approach to privacy enforcement than the prior administration, a former FTC enforcer said at a BBB National Programs webinar Thursday. Meanwhile, Texas Attorney General Ken Paxton (R) has focused on enforcement claims related to geolocation data, said Tyler Bridegan, who heads that state’s privacy enforcement unit.
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Hunton Andrews Kurth’s Phyllis Marcus, an FTC consumer protection enforcement veteran, said the Republican-led FTC will treat collection and sale of sensitive data differently than the FTC under former Chair Lina Khan.
Marcus said she expects Chairman Andrew Ferguson and Commissioner Melissa Holyoak to disregard Khan’s belief that selling sensitive categories of data is in itself a violation of the FTC Act. Establishing profiles for consumers based on sensitive information and indefinitely retaining datasets will also likely be fair game, she said: There will be an emphasis on “dialing back” claims in these areas.
Marcus listed several potential areas of disagreement from a Dec. 4 blog post summarizing the prior administration’s enforcement approach. The post argues that certain sensitive location data should never be sold, including information about trips for medical, religious, correctional, labor union, sexual orientation, political, educational, ethnic organization or military purposes. The FTC said in its post: “In most instances, businesses should not use or sell this data at all.”
Republicans seem unlikely to maintain that stance given dissenting statements from Ferguson and Holyoak in various cases, said Marcus. And neither would agree that selling sensitive categories of information in and of itself is a violation of FTC Act Section 5, which regulates unfair and deceptive practices. “The violation is in the collection of sensitive information without consent but not in the packaging up of that information.”
Marcus said there doesn’t seem to be support for the notion that targeted advertising is a violation of Section 5, either. A congressional bill reintroduced Tuesday by Sens. Ed Markey, D-Mass., and Bill Cassidy, R-La., seeks to ban targeted advertising for minors (see 2503040037). It’s a concept House Commerce Committee Republicans and Democrats explored in comprehensive privacy legislation during the 2024 session.
One area where Republicans and Democrats tend to agree is that geolocation data is always considered sensitive, she said.
Meanwhile in Texas, the AG office's first major case involved car manufacturers’ mass collection and sale of driving data to insurance providers, said Bridegan. Consumers are often unaware of how their data is used and sold and how it can be used against them for insurance purposes, he said. Legislators made clear in Texas’ new comprehensive privacy law that there are heightened requirements for sensitive data, including precise geolocation data, he said.
Marcus noted the FTC pursued similar geolocation claims against GM and OnStar (see 2501170068). The agency in that case alleged the companies failed to inform consumers that driver data, including information on hard braking, late-night driving and speeding, would be sold to consumer reporting agencies. The nonmonetary settlement includes a five-year ban on disclosure of geolocation and driving behavior data to consumer reporting agencies.