New Year's resolutions are usually quite personal – nobody wants friends telling them how to improve their lives. Knowing this, I nevertheless offer a few resolutions to my former employer, the Federal Trade Commission (FTC). Watching the agency from the outside for the past 14 months, a number of things have jumped out at me as issues that I think the agency should focus on a bit and a few changes that should be considered.
With that, FTC, here are six things for you to think about in 2023:
- Enough with the dark patterns
We get it – user interfaces that are manipulative can be problematic. But the legal standard isn't "problematic" – it's deceptive or unfair. The recent report on dark patterns was helpful in letting businesses know what might be a dark pattern, but more clarity on when a dark pattern becomes a deceptive or unfair practice is sorely needed. And just calling things that are deceptive "dark patterns" isn't really cutting it either. Not everything that's deceptive can be a dark pattern.
- Whither COPPA?
Back in 2019, the FTC sought public comment on whether and how to amend the Children's Online Privacy Protection Act (COPPA) Rule. And comment the public did, with over 175,000 comments filed – an astounding number. That number is greater than four stadiums full of people who actually managed to score Taylor Swift tickets. But since 2019, there has been awkward radio silence on this rulemaking. We understand that there are a lot of other privacy-related moving parts these days, including potential legislative changes to COPPA, but you have this authority, and you have a lot of comments. Maybe it's time to do something?
- And speaking of rules
Again, we get it– the FTC has the authority to do Mag Moss rulemaking, and the agency has demonstrated that in abundance this past year, kicking off almost a half-dozen new Mag Moss rules. What the agency hasn't done, however, is move significantly forward on any of the rules, except perhaps the relatively uncontroversial imposter rule. (Though interestingly, more concerns are being raised about even that proposed rule due to potential overbreadth of coverage.) Perhaps instead of starting more rulemakings and getting the quick media splash about those initiatives, we might want to focus on the ones we have started, maybe finish one or two, and maybe even give up on a few others. Devoting all of these resources to initiating new rulemakings that will take years to complete (if that happens) is perhaps suboptimal. Particularly when there are companies that pay attention to and crave updates to the good old-fashioned FTC business guidance.
- It's time to talk about those public meetings
I watched all 17 of these public Commission meetings, and if this had been a movie, I might have asked for a refund. Look, the concept is fine – hear from the public, be transparent, hear what the Commissioners think about important issues. I also like transparency. But the execution is deeply flawed. You are asking the public to comment on issues without the benefit of being able to review what the Commission will vote on. For example, the public was asked to opine on a policy statement on gig workers without actually seeing the draft statement. This does not lead to helpful, informed discourse, even though, I presume, that is a goal. Another challenge is that the Commissioners do not engage with each other or with staff. It's a set of canned speeches with neither spontaneity nor follow-up. Again, I know there are law enforcement reasons for not doing this, but there has to be some way to allow some discussion. As a former FTCer, I know that the back-and-forth between Commissioners themselves and between staff and Commissioners is key to the development of good policy. Some visibility into this would greatly improve these "meetings" if they are to continue.
- Watch the rhetoric
Tone matters, and as we've previously discussed, some of the press releases lately have been a bit, shall we say, excessive. Not everyone is cheating and stealing – and over-the-top verbiage can create unnecessary distractions. And I get it, there are times when the agency absolutely needs to call out really bad conduct. But not every alleged law violation should be treated the same. It is hard enough to negotiate a settlement, but it is even harder if the party knows that the agency is going to be calling it a liar or cheater in a press release.
- Bring back the workshops (or whatever you want to call them)
For many years, the FTC was well known for putting together valuable workshops that would explore emerging consumer protection issues. These days, we are seeing far fewer of such events. It's a bit of a mystery why this has stopped because these were really great vehicles to shine a light on important developments, gather information, and inform and educate the public. And not every workshop needs to be done in connection with a rulemaking; in fact, many of the best workshops were primarily informative. And we know that for some mysterious reason, current FTC leadership doesn't like the word "workshop." We are fine calling them something else – forum, conference, seminar, symposium, think tank, event, gathering, gala or heck, even kegger – just bring them back with more frequency.
And as for me, my New Year's resolution will be to stop complaining about the public Commission meetings. I anticipate breaking that resolution on or about Jan. 19 (the specific date for the next meeting has not yet been published).
Happy New Year!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
