The Federal Privacy Forecast: Are Privacy Laws or Regulations Likely, and How Will They Treat Digital Advertising?
Following House passage of 13(b) legislation this
summer, Congressional Democrats seem to have lost some of
the urgency with which they were moving to strengthen the FTC's
penalty authorities in the wake of the Supreme
Court's AMG decision. This is partly due to
their preoccupation with a months'-long effort to move
President Biden's "Build Back Better" agenda and
partly due to the need for some degree of bipartisan consensus in
the Senate. With the caveat that Congress can – and often
does – surprise us, the prospects for a 13(b) fix any time
soon remain murky at best.
For the first time in two years, State Attorneys General and
their key consumer protection staff have gathered in Washington
D.C. to attend the National Association of Attorneys General Fall
Consumer Protection conference. For State AG staff in
particular, this meeting, and its Spring counterpart, may be the
most important and well attended event of the year with over 400
attendees total. Priorities for the Attorneys General are often
shaped at these meetings, and they present a unique opportunity for
industry to get insight.
We are thrilled to welcome Texas Associate Deputy Attorney
General Paul Singer to the firm's growing State Attorneys
General practice group. On the heels of former top Federal Trade
Commission (FTC) officials Jessica L. Rich and Laura Riposo
VanDruff joining the firm, Paul's addition further strengthens
Kelley Drye's ability to help clients prepare for the future of
consumer protection law, and to advise clients facing State
Attorneys General investigations, as well as investigations brought
by the FTC, Consumer Financial Protection Bureau, and local and
county District Attorneys' offices.
Last month, we posted about the FTC's warning letters to marketers reminding them that they need to ensure that influencer posts and incentivized reviews include appropriate disclosures. And, shortly after that, we posted about the FTC's new policy statement warning marketers that they need to clearly disclose the terms of their subscription offers. Mindful of the FTC's recent actions, this morning, NAD announced a new, streamlined lane of the expedited Fast-Track SWIFT challenge submission process, one designed specifically to address the prominence and sufficiency of disclosures in national ads. This is an update to the process that was launched in 2020.
Lina Khan was appointed FTC Chair in June of this year, about five months ago as of this writing. Even before she arrived, she promised to bring bold new thinking to the agency and to change the way it does business. In previous blogposts, we highlighted Khan's vision for the agency, her plans for privacy, and the FTC's aggressive use of penalty offense warning letters, among many other topics. In this blogpost, we're focusing on how Khan is changing the process and tone at the agency.
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