Comment to the FTC on Transparency and Commercial Surveillance

On October 21, 2022, the Cyberlaw Clinic submitted a comment in response to a request from the Federal Trade Commission for feedback regarding an Advance Notice of Proposed Rulemaking related to commercial surveillance and data privacy. The comment was submitted on behalf of the Berkman Klein Center and its projects and associates, including the Data Nutrition Project, the Lumen database, the Risk Assessment Tool Database project, and the Youth and Media project. The comment provides actionable recommendations that would represent meaningful incremental steps toward an eventual goal of end-to-end data transparency from data collectors and processors. These include tailored transparency mechanisms, flexible disclosure requirements, and protections for vulnerable populations online. 

The comment recommends that the FTC implement transparency mechanisms tailored to yield actionable data and impose specific, flexible disclosure requirements that are sensitive to the complexities of data collection. A one-size-fits-all approach, while perhaps easier to devise, would have little meaningful effect given the wide range of practices and pipeline structures both among different companies and within a given company. We suggest that the FTC can foster better consistency in data practices moving forward via regulations that nudge data practices toward standardized objectives.

The comment also recommends that the FTC protect vulnerable populations by requiring opt-in data collection regimes, specifically informed, appropriately scoped consent from users as a precondition to any data collection or use. Given the prevalence of social media use by minors, we suggest companies more intentionally include minors in their design process to best accommodate their conceptions of privacy, which can vary significantly from those of adults. Our recommendations prioritize respecting the agency of members of these populations and are supported by a combination of practical, ethical, and psychological data.

The comment acknowledges the impracticality of promulgating a complete overhaul of existing data pipelines, although the advantages of a system where users could understand how their data would be collected and used, query all the data a company had about them, and request removal of personal data would be immense. Instead, it focuses on actionable recommendations that avoid providing a rubber stamp for companies to legitimize their practices without making meaningful changes. These recommendations include contexts in which privacy is more critical (e.g., with respect to data collected about humans that is actively in use). This is especially important as newer platforms (e.g., the Metaverse) are poised to collect information about users almost nonstop. Proactive regulation that anticipates future developments in data collection and use will help foster consistent data practices that facilitate greater transparency for new platforms from their inception.

Our recommendations align with those proposed by lawmakers. For example, Representative Susan Delbene (D-WA-1) introduced the Information Transparency & Personal Data Control Act in March 2021. The bill proposes that the FTC require regulated entities to obtain affirmative consent from users before collecting sensitive personal information, articulate their privacy and data uses in plain English, and perform bi-annual audits of their privacy practices. The bill has 29 co-sponsors to date. The high import afforded to limiting commercial surveillance and protecting data privacy is undoubtably warranted given the rapidly growing amount and variety of data collected about consumers.

We look forward to following the FTC’s upcoming rulemaking on this topic.

Alice Hu, Ali Jenkins, and Samiksha Ramesh (all HLS JD ‘24) — all students in the Cyberlaw Clinic this fall semester, 2022 — drafted the comment, working with Jessica Fjeld and Chris Bavitz on the Clinic team. For Berkman Klein, Sue Hendrickson, Kasia Chmielinski, Sandra Cortesi, Adam Holland, Adam Nagy, Sarah Newman, and Shreya Tewari contributed to the comment.