The Cordell Institute was pleased to submit lengthy comments to the Federal Trade Commission in response to its call for public comment on its proposed rule for Trade Regulation on Commercial Surveillance and Data Security. The comments are the culmination of months of drafting by Cordell Faculty Director Professor Neil Richards, Cordell Faculty Fellow Professor Woodrow Hartzog (Boston University), and Cordell Research Fellow Jordan Francis.
Our comments urge the Commission to promulgate substantive data privacy and data security regulations which will foster trust and enable human flourishing. Recognizing the importance of trust in digital markets, our comments are organized around three arguments: (i) commercial surveillance is the correct label for the data practices observed in the market; (ii) notice and choice, centered around the fiction of consumer consent, has failed as a regulatory regime; and (iii) the Commission should ground its future data privacy rules under its Section Five power in concepts of trust, loyalty, and relational vulnerability.
The Commission has an opportunity to pass substantive rules which benefit consumers and companies by fostering trust and enabling human flourishing. We applaud the Commission for its thoughtful approach to these questions of critical importance for the future of our economy, our society, and our democracy.