Public Comment for FTC's Commercial Surveillance ANPR

These comments, respectfully submitted in response to the Federal Trade Commission’s (FTC) advanced notice of proposed rulemaking (ANPR) on the prevalence of commercial surveillance and data security practices that harm consumers, are based on selected research findings – our own and others. They are organized into four Parts. Part I drives a stake through the heart of direct-to-consumer consent-based approaches, arguing that notice and consent, transparency and choice, and privacy policies are not only ineffective; they may constitute “unfair and deceptive” practices. Part II addresses questions about data minimization, purpose limitations and sectoral approaches, vulnerable populations, and costs and benefits by drawing on the theory of privacy as contextual integrity (CI) (Nissenbaum, 2009). Part III discusses questions on the role of third party intermediaries in the enforcement process and facilitation of new disclosure rules, mechanisms to require/incentivize companies to be forthcoming about their data practices, and the role of civil rights agencies. Part IV suggests an adaptive regulatory model for the FTC through three regulatory learning cycles that can help the Commission account for changes in business models of surveillance-based industries.