The FTC had a lighter week following Labor Day as the Commission hosted a public forum on its proposed rulemaking on commercial surveillance and lax data security practices. A D.C. federal court judge handed the FTC a victory when it denied a request from Facebook to turn over the FTC’s analysis of Facebook’s acquisition of Instagram and WhatsApp. The Commission ended the week by announcing its agenda for an open commission meeting scheduled for September 15. This story and more after the jump. 

Tuesday, September 6, 2022

Bureau of Competition: Merger Review

  • In the FTC’s litigation against Facebook parent company Meta Platforms in the District of Columbia, U.S. District Judge James E. Boasberg concluded the FTC’s analysis of Meta’s acquisition of Instagram and WhatsApp to be privileged and protected from disclosure. Judge Boasberg denied Meta’s request to compel the Commission to produce its analysis, decisively rejecting Meta’s argument that the FTC waived its deliberative-process privilege because the Commission disclosed the same documents to the House Judiciary Committee. Importantly, Judge Boasberg agreed with the FTC that the facts contained in these memoranda could not be separated from the privileged analysis, cutting off Meta’s ability to gain redacted access to the documents. The order marks a setback for Meta, which has been gathering documents for its defense in recent months.  

Thursday, September 8, 2022

Bureau of Consumer Protection: Data Privacy and Security

  • The FTC hosted a public forum regarding its Advance Notice of Proposed Rulemaking (ANPR) on commercial surveillance and data security practices. FTC Chair Lina M. Khan opened the forum, and Commissioners Rebecca Kelly Slaughter and Alvaro Bedoya rendered remarks. In her prepared statement, Commissioner Kelly Slaughter emphasized that “until there’s a [federal privacy] law on the books, the Commission has a duty to use all the tools we have to investigate and address unlawful behavior in the market.” The event also featured two panels and a staff presentation before opening for public comment. The first panel focused on industry perspectives on commercial surveillance and data security, and panelists included executives from Digital Content Next, Mozilla, National Retail Foundation, and Partnership on AI. Meta had been invited, but was “no longer able to participate.” For the second panel, Rashida Richardson, attorney advisor to Chair Khan, moderated a discussion on consumer advocate perspectives, which focused on whether there should be federal standard requirements for privacy policies and data surveillance of children.

FTC Operations: Open Commission Meeting

  • The FTC announced its tentative agenda for the September 15th Commission meeting. The Commission will vote on its advanced notice of proposed rulemaking on government and business impersonation that it issued in December 2021. The FTC will consider a staff report on dark patterns following the FTC’s April 2021 dark patterns workshop. If issued, the report may reveal FTC strategy on how the Commission plans to target user interfaces it contends have the effect, intentionally or unintentionally, of obscuring, subverting, or impairing consumer autonomy, decision-making, or choice. Finally, the Commission will vote on a policy statement on enforcement related to gig work. The FTC’s agenda indicates that the statement may affect businesses with a “a business model where people can earn income through on-demand activities, often through a digital platform or app.”