Faced with the prospect of the U.S. Federal Trade Commission becoming active in their industry, people in the commercial surveillance end of the internet are asking the regulator to take a nuanced approach to data privacy rulemaking.
FTC members in August announced that they are considering regulations that would address harms from commercial surveillance and data security. Last week, commissioners held a lengthy public forum (its transcriptions ran 82 pages) to hear about regulatory needs from those in the community, including members of the public.
(There is a subtext, voiced by Commissioner Rebecca Slaughter in case anyone present missed it.)
“We’re no longer shying away from using all the tools we have available to deter unlawful conduct in the market,” Slaughter said.
Much of what was said at the forum referred to business models that depend on sharing visitor information across sites and even from device to device. Above-board businesses want to gain the greatest picture of anonymized online spenders in order to increase their spending.
But what the FTC does in commercial surveillance will have broad impacts, including in biometrics.
The commission is aware that there are no national, much less international, laws for collecting, using and managing demographic and biometric data. In that legal environment, permanent personal information is being traded. One good example is how face-scraper Clearview AI trades images from social media platforms that have their own rules barring such actions.
Lina Khan, chairperson of the FTC, told the assembled experts and insiders that commissioners want to know if “unfair or deceptive data practices may now be so prevalent that we need to move beyond case-by-case adjudication” in favor of market-wide rules.”
That part is apparently what got some people’s attention. If broad and possibly draconian regulations are in their future, those in the industry told commissioners that surveillance tactics and business models that could be viewed as unethical or illegal are beneficial in other contexts. Taking the Clearview example, only law enforcement agencies are allowed to search its biometric database.
During the first panel – industry insiders – speakers were at pains to admit there is unethical and illegal commercial surveillance operations online.
Yet statement after statement brought up the idea of context.
Jason Kint, CEO of Digital Content Next, a nonprofit association of digital content creators, said there still are many publishers that get a big portion of their revenue from advertising. “But subscriptions are super-important.”
Having put money down to view content, Kint said, people do not want to see permissions pop-ups when they are within a publisher’s site, and that goes for other content providers – who surveil — understood by subscribers as being in the same privacy environment.
Paul Martino agreed. Martino, the vice president and senior policy counsel at the National Retail Foundation, said “I think it’s where [visitors] don’t know who has their data, they don’t know how it’s being used, where the FTC should focus its time.”