Roughly six months since Andrew Ferguson became Chairman of the Federal Trade Commission, an FTC workshop on children's privacy and online safety has provided a glimpse into the agency's approach to these issues.
While FTC workshops have historically been staff-driven events, this workshop showcased many agency leaders, including through keynotes from three commissioners and panels moderated by the Director of the Bureau of Consumer Protection (BCP) Chris Mufarrige, Deputy Director of BCP Kate White, and advisors to the Chairman. In addition, the workshop featured speeches by Senators Marsha Blackburn and Katie Britt and commentary from panelists from organizations such as the Heritage Foundation, National Center on Sexual Exploitation, Family First Technology Institute, and Family Policy Alliance.
Several key themes emerged:
- Concerns with a broad range of issues. The workshop underscored that the privacy and online safety of minors, both children and teens, is a top priority at the FTC. Speakers from the FTC and outside organizations expressed concerns about a wide range of issues and practices, including online bullying, inappropriate content, infinite scroll, algorithmic content recommendations, sexual grooming, and sextortion. Further, a number of speakers, including Commissioner Melissa Holyoak in her remarks, raised concerns about emotional manipulation from interactions between minors and generative AI-powered chatbots. The FTC's chief technologist, Jake Denton, opined that, in his view, targeted advertising as a revenue source drives technology platforms to seek users' attention and informs their decisions regarding the user experience, such as the frequency of push notifications and a wide variety of design decisions, such as those concerning "likes" and follower counts. He explained his view that these decisions have downstream effects on minors, such as sleep deprivation, behavioral disorders, and attention deficits.
- Empowering parents. In his opening remarks, Chairman Ferguson emphasized the importance of assisting parents in "the exercise of their right to exert meaningful control over their child's activities online and the data generated by those activities." He called on Congress to enact legislation "requiring that smartphone and operating systems, as well as online services, give parents the tools they need to carry out their preferred approach to supervising and protecting their children online," which should include the ability to (1) "decide whether their children can have a personal account on social media, online gaming, or a streaming service," (2) "see what messages their children are sending or receiving on a particular service," and (3) "erase any trace left by their children on these platforms." Commissioner Holyoak similarly stressed the importance of effective parental controls that are clear, easy to find, easy to use, and that cannot be easily circumvented by children.
- Eye on big tech. If there were any question whether the FTC during the second Trump administration would be more hospitable to large technology companies than the FTC under the leadership of then-Chair Lina Khan during the Biden administration, those doubts were laid to rest, at least in the context of children and teens online. The event, called "The Attention Economy: How Big Tech Firms Exploit Children and Hurt Families" was described by the FTC as a forum on "how Big Tech companies impose addictive design features, erode parental authority, and fail to protect children from harmful content." A disinvited speaker criticized the event for its framing of the issues and its absence of speakers from the technology industry. Further, Commissioner Mark Meador analogized technology companies to "big tobacco" throughout his remarks.
What to expect from the FTC under current leadership? The workshop made clear that the FTC will remain focused on children's privacy and online safety and—barring new authority under the Kids Online Safety Act, the Children and Teen's Online Privacy Protection Act, the App Store Accountability Act, or other legislation—may seek to use its existing authority as follows:
- Report on AI companion chatbots. Commissioner Holyoak said the FTC should issue a report on AI companion chatbots as used by minors, based on compelled industry responses to questions, using the FTC's authority under Section 6(b) of the FTC Act (similar to an FTC report on social media and streaming services). She explained that such a report would provide information to policymakers and the public. In light of Commissioner Holyoak's support, we may well see such a study, and can also envision FTC law enforcement scrutiny.
- Expansive use of Section 5. A number of speakers from advocacy organizations urged the FTC to take a broad approach to what constitutes a "deceptive" or "unfair" practice under Section 5 of the FTC Act. Such speakers suggested that the FTC enforce Section 5 where online services have (1) misrepresented their parental controls, (2) misrepresented the nature of their services in app store age ratings or elsewhere, or (3) not enforced their guidelines and terms of service concerning acceptable content and behavior on their online services. The FTC is likely to explore such approaches in light of the views expressed by a number of workshop participants.
- Enforcement of the TAKE IT DOWN Act (if resources are forthcoming).Congress recently authorized the FTC to enforce the requirement in the TAKE IT DOWN Act that certain communications platforms implement a "notice and takedown" process to remove "non-consensual intimate imagery" from their platforms within 48 hours of a valid request. (See our prior post here.) Chairman Ferguson expressed strong support for the law, which Deputy Director Kate White called a "true priority." At the same time, in testifying before the House Appropriations Committee, Chairman Ferguson cautioned that the FTC needs to make "meaningful investments" in segregated IT infrastructure and specially-trained personnel to enforce the law. Provided the agency can obtain funding to meet these needs, we expect to see vigorous enforcement of the takedown provisions.
In light of the FTC's clear interest in this area, at a minimum, technology companies should consider revisiting their policies and practices with these potential FTC next steps in mind.
*Thanks to Perkins Coie Counsel Aaron Haberman and Associates Amber Mixon, Courtney Otto, and Zoe Wood for their contributions to this post.
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