What’s a good, succinct way to describe the current US system of data security and privacy regulation? “It’s a mess,” said Daniel Solove, a professor of law at George Washington University. That’s why the Federal Trade Commission (FTC) is hosting a series of hearings to help it rethink its approach to policy and antitrust enforcement and better keep up with the pace of tech. Here are five issues the FTC must consider as it hammers out priorities for policy and enforcement in the 21st century.
Keeping up with tech: Virtually everything the FTC tackles today has something to do with emerging technologies. But FTC isn’t equipped to monitor the rapid pace of innovation from the tech sector.
Regulating algos – Predictive algorithms are extremely difficult to regulate. And yet, companies increasingly rely on algorithms for their decision making which could depend on the scenario, cause consumer harm. How do you argue with a prediction?
Enforcing rules – Regulating enormous platforms like Facebook, Google, and even Amazon is just as tricky as trying to cross-examine an algorithm. But deputizing the platforms to be responsible for policing themselves isn’t a great option either, which is part of why more access to skilled tech talent should be a top agenda item for the industry.
What’s the harm? – The FTC uses the concept of consumer harm to dictate the cases and enforcement actions it brings, which means the burden is on the commission to demonstrate that there’s been deception or likely consumer injury.
Defining harm, however, is harder than it sounds. Is it monetary, reputational, the irreplaceable loss of a loved one or all of these things and more? And that’s because harm, at least considered within the FTC’s remit and mission, can be an amorphous concept.
Patchwork of privacy laws – Unless the business interests that are unhappy with the California law succeed in scuttling it or changing it in some significant way, Vladeck said, “we’ll see other states moving to adopt a regime based on the California statute which is, in some ways, based on the GDPR.”
Source: Schiff, A. (2018, September 14). 5 Things the FTC Needs to Keep in Mind as it Modernizes. AdExchanger.