Wicker in Washington Examiner: FTC must leave privacy legislating to Congress

September 30, 2021

Consumer data powers today’s digital economy. Data is the coveted resource that is fueling explosive growth across multiple sectors, yielding exciting new innovations in areas as diverse as artificial intelligence, medical diagnostics, and automated vehicles. People have also experienced the practical benefits of data during the COVID-19 pandemic, as more individuals are relying on internet-based technologies to connect to work, school, healthcare, and their loved ones.

Despite these tremendous benefits, the ubiquity of data has also raised privacy concerns. Consumers want to know what personal information is being collected about them, and they want some say in how it is aggregated, used, and shared. On the industry side, businesses need a clear set of rules that will not slow the development of promising technologies. Congress has been working hard to develop a long-term legislative framework that addresses the needs of both consumers and innovators.

Some European countries have already begun adopting new privacy laws, as have certain U.S. states. Although the desire for these laws is understandable, a patchwork of state privacy laws is unworkable, as data moving over the internet does not recognize state boundaries. These laws have also come at a cost to industry. Expanded consumer protections have had clear impacts on investment, competition, and innovation. These trade-offs highlight the need for policymakers to balance the various interests at stake in crafting privacy policy.

In recent months, some have proposed that the Federal Trade Commission take up privacy reforms unilaterally through executive rulemaking. This would be a step in the wrong direction. America needs a national consumer privacy law, but such a law must be the product of Congress.

This lone ranger approach would also be a recipe for bad policy. It is simply impossible for five commissioners at the FTC to take into account the complex privacy interests of 330 million consumers and thousands of private enterprises. Inevitably, the commissioners would favor certain business models over others, triggering massive penalties against practices they personally disfavor. These top-down dictates would also face the constant specter of reversal under a new administration, thereby failing to provide the certainty that innovators need. Only Congress can provide the durable, fine-tuned legislation that will serve America for decades to come.

Every person and business in the United States has an interest in the outcome of these deliberations. It is precisely because the stakes are so high that rules cannot be the result of an agency edict. A national law must be the product of debate and compromise among the people’s representatives, and we are committed to seeing this process through.

Once Congress determines the path forward on privacy, the FTC will be the right agency to carry out the law. The FTC’s smart and dedicated staff have been tackling these thorny questions for decades, and today the commission is the most effective privacy enforcer in the world.

All of us support legislation that would give consumers baseline protections by increasing transparency, choice, and consumer control over personal data. We want guardrails for responsible data use that will give consumers confidence for the future while securing a level playing field for innovators operating all across the country. Americans expect us to meet this defining challenge at the dawn of the digital age. We intend to work with our colleagues in Congress to get the policy right and get the job done this Congress.

This op-ed was orginally ran in Washington Examiner