Marsha Blackburn flags FTC for a ‘rulemaking crusade’ that skirts Congress’ oversight


The gloves are off at the Federal Trade Commission.

The FTC, an independent agency now chaired by one of President Biden’s appointees, is picking fights with Capitol Hill and Big Tech as it looks to assert its influence on crucial tech and privacy issues.

The regulator issued a warning this summer saying it would crack down on companies that misuse consumers’ data. Then last week it said it was “exploring rules to crack down on harmful commercial surveillance and lax data security.”

Sen. Marsha Blackburn, Tennessee Republican, is worried the FTC is usurping Congress’ role in creating privacy policy. 

“I am concerned that the FTC has decided to move ahead with a far-reaching digital surveillance inquiry and rulemaking crusade without waiting for the results of active discussions in Congress,” Ms. Blackburn said in a statement last week. “Without guardrails set by Congress, this is doomed to become another cautionary tale of how the left uses the regulatory state to tear down and rebuild the economy according to their own vision.”

Lawmakers have worked in a bipartisan fashion on legislation that changes privacy and data security policy. The House Energy and Commerce Committee advanced a bipartisan privacy bill in July by a vote of 53-2, though it appears unlikely to get a hearing in the Senate. 

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The American Data Privacy and Protection Act wants to minimize the collection of people’s data, gives people the ability to turn off targeted ads, online and creates a new FTC privacy bureau, among other things. 

The legislation from Reps. Frank Pallone, New Jersey Democrat, and Cathy McMorris Rodgers, Washington Republican, has not amassed key Democratic support. Senate Commerce Committee chair Maria Cantwell, Washington Democrat, has said there is no way Senate Democrats would bring the bill up for a vote. 

Rather than wait to see if any legislation changing tech and privacy policy gains support, the FTC is looking for new rules that may provide it the authority to impose penalties that it believes will incentivize companies to comply with the government’s demands. 

FTC chair Lina Khan said last week her goal is to build a “robust public record” to inform whether the FTC should adopt new rules. A virtual forum open to the public is scheduled for next month.

The FTC has five commissioners who each serve seven-year terms. There are currently three commissioners appointed by President Trump and two appointed by Mr. Biden, including Ms. Khan.

The FTC declined to directly respond to Ms. Blackburn’s remarks, but commission spokesman Peter Kaplan noted recent comments by agency officials saying they were committed to following Congress’ direction. 

The FTC has also pursued Facebook’s parent company Meta and targeted its metaverse business in the U.S. District Court for the Northern District of California. It said that Meta has a “virtual reality empire” and the regulator sought last month to block the tech company’s acquisition of Supernatural, a virtual reality fitness app from Within Unlimited. 

At a federal court hearing on Monday for the FTC’s new case against Meta, Judge Edward J. Davila said the trial may begin in December, adding that it looked like the parties would not settle out of court, as often happens.

“It really does read like and it sounds like this is going to be a trial, doesn’t it?” Judge Davila said. 

The latest scrap is part of a years-long feud between the FTC and Meta. A separate antitrust complaint from the FTC against Meta is advancing this year in the U.S. District Court for the District of Columbia after a previous version of the lawsuit against Facebook was tossed in 2021.


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