Comments of the Cordell Institute for Policy in Medicine & Law at Washington University in St. Louis

The Federal Trade Commission—with its broad, independent grant of authority and statutory mandate to identify and prevent unfair and deceptive trade practices—is uniquely situated to prevent and remedy unfair and deceptive data privacy and data security practices. In an increasingly digitized world, data collection, processing, and transfer have become integral to market interactions. Our personal and commercial experiences are now mediated by powerful, information-intensive firms who hold the power to shape what consumers see, how they interact, which options are available to them, and how they make decisions. That power imbalance exposes consumers and leaves them all vulnerable. We all share data concerning ourselves with these platforms, often unwittingly, and we leave ourselves at the risk of their manipulation and control. The Commission envisions “[a] vibrant economy fueled by fair competition and an empowered, informed public.”1 But, this vision cannot be realized in the absence of meaningful consumer trust. Trust is the oxygen necessary for consumer choice to survive. Where trust is present, consumers are empowered to invest in companies and share their data knowing they are not going to be betrayed, manipulated, deceived, or treated unfairly. But where trust is weakened or absent, the marketplace breaks down and becomes a fertile ground for the development of market failures that are contrary to the interests of consumers and competition. 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 in concepts of trust, loyalty, and relational vulnerability