The FTC Should Analyze the GDPR and the CCPA

August 21, 2018

The Federal Trade Commission (FTC) will be holding a series of hearings this fall to determine whether changes in technology and the economy might require adjustments in their competition and consumer protection policies.  

ANA filed detailed comments with the Commission yesterday, strongly urging the FTC to carry out a rigorous analysis of the impacts of the EU’s General Data Protection Regulation (GDPR) and the California Consumer Privacy Act on both competition and consumers.

We also suggested that the FTC promote the U.S. sectoral model of privacy protections, based on a careful analysis of potential harms to consumers and backed up by strong industry self-regulation.  

There has been a complete, unprecedented turnover of FTC commissioners. The FTC also has called for a thorough review of their regulatory and legal authority. These comments provided an excellent opportunity to describe the major successes of the ad community’s self-regulatory programs and to emphasize the critical importance of data-driven marketing and advertising to our nation’s economy.

Our comments made the following points:

  • Data Drives Competition and Allows Companies to Provide Significant Benefits to Consumers. Data is the fuel that drives the modern, internet-based economy. Every day consumers’ lives are enriched by data-driven resources, including an unprecedented array of high-quality information and entertainment. Revenues from online advertising support and facilitate e-commerce, and subsidize the cost of content and services that consumers value and expect.

  • The United States Has a Strong Record of Enforcement through Unfair or Deceptive Acts or Practices Authority, Sectorial Laws, and Self-Regulation. The U.S. privacy framework is effective. The existing combination of sectoral laws, designed to address specific, concrete harms, complemented with enforceable self-regulatory codes of conduct, has proven to be a successful means of advancing innovation while providing consumers with transparency and control over data collection and use. The Commission should incorporate this framework into any future privacy approach.

  • The U.S.-Internet Economy Is Under Unwarranted Threat. The U.S. created the most dynamic, competitive, and consumer-friendly digital economy in the world. It has done so within a well-structured and considered privacy framework of sectoral laws supported by self-regulation. New laws like the California Consumer Privacy Act (“CCPA”), and calls to adopt an EU-like approach based on the General Data Protection Regulation (“GDPR”) in the United States, are anything but well-reasoned and calibrated to promote growth and competition while preserving consumer transparency and control over data practices.  

  • The FTC Should Conduct Economic Impact Assessments of Restrictive Data Privacy Regimes. The FTC should carry out a rigorous analysis on the impact of GDPR and CCPA to determine their effects on competition and consumers. We anticipate that the Commission will find that laws like the GDPR and CCPA will limit competition, overburden consumers with a barrage of notices, and make an efficient and effective digital economy harder to maintain. Such research will be critical to the formulation of well-informed policy decisions and enforcement priorities.

We recently met with Chairman Simon and Commissioner Rebecca Kelly Slaughter and are scheduling meetings with the remaining members of the Commission. The last time the Commission conducted such a broad review of their legal authority was back in 1995.

We hope to be able to take part in the hearings this fall to describe the important role that advertising plays in our competitive marketplace and as a source of vital information for consumers.

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