On August 11, 2022, the Federal Trade Commission (FTC) voted 3-2 on partisan lines to file an Advance Notice of Proposed Rulemaking (ANPR) that would regulate the protection of consumers’ privacy and data security in a rulemaking titled “Trade Regulation Rule on Commercial Surveillance and Data Security.”

The release of this ANPR—in the midst of discussions about comprehensive federal privacy legislation, including the proposed federal American Data Privacy and Protection Act (ADPPA) as well as implementation of forthcoming state privacy laws such as the California Privacy Rights Act (CPRA)—signals the FTC’s desire to police a wide range of potential privacy harms related to the “information asymmetry” between companies and consumers. The FTC is particularly interested in potential harms stemming from “dark pattern practices” and “lax data security practices,” among many others in the sprawling release.

The deadline for public comments is 60 days after the ANPR is published in the Federal Register. To further address the topics in the ANPR, the FTC announced a virtual public forum to be held on September 8, 2022, from 2 p.m. until 7:30 p.m. eastern time (instructions for joining are at: https://www.ftc.gov/news-events/events/2022/09/commercial-surveillance-data-security-anpr-public-forum).

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