On August 11, 2022, the Federal Trade Commission (FTC) announced proposed rulemaking pertaining to “commercial surveillance and lax data security.”  However, the overall focus of the potential rulemaking is consumer privacy and data security. The FTC states in its notice that its “extensive enforcement and policy work over the last couple of decades on consumer data privacy and security have raised important questions about the prevalence of harmful commercial surveillance and lax data security practices” and that this experience has suggested enforcement alone without rulemaking is not sufficient.

The agency defines “commercial surveillance” as the business of collecting, analyzing, and profiting from information about people.”

FTC Chair Lina M. Khan stated in the commission’s press release, “[o]ur goal today is to begin building a robust public record to inform whether the FTC should issue rules to address commercial surveillance and data security practices and what those rules should potentially look like.”

In a fact sheet released in conjunction with the notice of proposed rulemaking, the FTC identified issues in the “commercial surveillance industry” including the collection of consumer information, data security, harm to children, bias and discrimination, and dark patterns. Similar practices and concerns were recently addressed in both technical guidance issued by the Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ), as well as pending federal legislation, the American Data Privacy and Protection Act (ADPPA).

During the press conference regarding the proposed rulemaking, the FTC stated support for the pending ADPPA and that it did not intend to overlap with coverage of that legislation should it pass.

The FTC will be hosting a public forum on commercial surveillance and data security virtually on September 8, 2022, from 2 pm until 7:30 p.m. The FTC will also be soliciting comments on the proposed rulemaking, though the link to submit comments is not yet available.

Jackson Lewis will continue to track the FTC’s proposed rulemaking and related guidance. If you have questions about the proposed rulemaking or FTC enforcement actions or related issues please reach out to a member of our Privacy, Data, and Cybersecurity practice group.

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Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is the office managing principal of the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and a member of the firm’s Board of Directors. He is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy…

Jason C. Gavejian is the office managing principal of the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and a member of the firm’s Board of Directors. He is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Jason focuses on the matrix of laws governing privacy, security, and management of data. Jason is co-editor of, and a regular contributor to, the firm’s Privacy blog.

Jason’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Jason helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Jason assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Tampa, Florida, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the…

Joseph J. Lazzarotti is a principal in the Tampa, Florida, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.