In law and policy, words matter. So in a recent comment on a Federal Trade Commission (FTC) Advanced Notice of Proposed Rulemaking (ANPR), Neil Chilson and I fixed on the selection of “commercial surveillance” as the object of the FTC’s interest. The phrase adds yet more confusion to an area of policy already susceptible to muddy thinking: privacy and data security. Back to the drawing board, we argue, and at the drawing board, the FTC should do several things differently.

For those who aren’t utterly steeped in regulatory process, an ANPR is an optional process available in the preliminary stages of rulemaking. It invites the public to participate early in shaping forthcoming rules. The idea—not terribly evident in practice—is that early input will tune an inquisitive, open-minded, and pliable agency to genuine problems and sound solutions.

That theory of agency open-mindedness is rather debunked by the present example. By calling its look at commercial data practices commercial surveillance, the FTC has evidently prejudged a lot of issues, starting with the nature of the relationship between businesses and consumers.

In a recent report, Chilson and I unpacked the semantics of the word “surveillance”:

“Surveillance” connotes observation of one by another in a dominant-subordinate power relationship. It is watching over by a party whose superior power has historically extended as far as issuing death sentences. . . . A relationship premised on surveillance is not one of mutuality or equality, but of superiority and even dominance. The purpose of surveillance is typically at least antagonistic and possibly hostile.

Power is a woefully under-theorized social concept, but people talk about it all the time (usually pointing to the power of others, not their own). Businesses do have power because of their size and organization, but consumers have power too. They can “withdraw their life-giving dollars from companies that displease them,” Chilson and I write.

Evidently convinced of unilateral power, the FTC has adopted a perspective on business organizations that equates them to the comités de surveillance (watch committees) set up during France’s Reign of Terror. This prejudges a lot of issues and drags countless entirely beneficial business practices into the FTC’s dock.

Our comment:

Businesses collecting information about consumers and users is certainly prevalent. But, like collecting a customer’s mailing address for order fulfillment, nearly all practices that fit the FTC’s broad definition of “commercial surveillance,” are not only perfectly legal, but they are also commonplace, beneficial, and necessary for commerce to occur.

The FTC’s pejorative premises limit the ability of participants to establish a focused record that adequately identifies practices that may satisfy the statutory requirements for rulemaking. The FTC should start again, and we have a few suggestions.

First, the FTC should define the concerns it is addressing. Privacy refers to as many as eight different interests or values that people hold: fairness, personal security, financial security, peace and quiet, autonomy, integrity against commodification (or anti-commercialism), reputation, and the ability to control others’ access to one’s personal information. Blowing up an inquiry in this area with the indefinite and novel concept of commercial surveillance is a step in the wrong direction.

The FTC should distinguish carefully among the values that may be threatened through wrongful collection and the retention of use of personal information. Doing so would better enable the FTC to distinguish commercial wrongdoing from changes in commercial and social practices that are not within the capacity or jurisdiction of the agency to regulate.

The FTC should draw clearer lines to past FTC privacy frameworks. This would shore up the rulemaking from policy and legal attacks and better achieve the aims of the ANPR to protect privacy and data security.

The FTC should return to the practice of having commission staff publish a report containing an analysis of the rulemaking record and recommendations so they can receive public comment. This practice was removed by the FTC soon after Chair Lina Khan joined the agency.

Finally, the FTC should look at real surveillance. Governments are increasingly purchasing commercial data for law enforcement and other surveillance purposes. This is an inroad against consumer and citizen privacy that may have constitutional dimensions, and the FTC’s convening power may shine useful light on it.

If the FTC’s treatment of commercial data use is an outgrowth of the concept surveillance capitalism as popularized by the book The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (PublicAffairs, 2019), Chilson and I recommend a critical reading of that book. It is an urgently written polemic, sweeping in scope, light on practical details, and, like the ANPR, a conceptual muddle.

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