Washington, D.C. – Jordan Crenshaw, Vice President, U.S. Chamber Technology Engagement Center, testified before the Federal Trade Commission's (FTC) data privacy rulemaking open forum.
"Congress, with the assent of the president—not the Federal Trade Commission—is the only government entity that can mandate economywide policies for data privacy, security, and algorithms. If the Commission proceeds down the path of promulgating rules economywide, as asked about in its ANPR, it will trigger the Supreme Court’s Major Question Doctrine which requires agencies to have been given a clear authorization from Congress in the case of rules that have major economic consequences.
"An economywide rulemaking will have a major impact on the economy. Data is core to the business decisions of every company in America. A recent report from the US Chamber found that small businesses using technology and data have an $17 trillion impact on the economy and support 100 million jobs. 80 percent of small businesses say technology helps them compete with larger firms. That same number of small businesses believe limiting access to data will harm their business operations.
"Congress has never given authorization to the FTC to make broad rules on data privacy. If it did it would have done so like it did under COPPA and GLBA. Congress is currently working on very complicated issues requiring tradeoffs under the proposed American Data Privacy and Protection Act—a bill that FTC said it would consider changing its approach for if passed. Why change course if Congress has clearly spoken?
"The business community takes issue with the Commission unfairly referring to its potential rules as those concerning “commercial surveillance.” This is clearly a privacy, security, data, and algorithmic rulemaking. The term “commercial surveillance” connotes that the use of consumer data is negative. If a rulemaking was lawful, the FTC would objectively and independently be required to look at both harms and benefits. For example, data is being used to secure networks, promote financial inclusion, and improve healthcare outcomes. It is also helping small businesses survive and thrive through tailored advertising—a practice 77 percent of Americans prefer.
"We urge the FTC to wait on Congress as constitutionally required to pass a true, clear, and workable national privacy law and to follow the FTC Act by remembering the tremendous benefits consumers derive from our data driven economy in any enforcement proceeding."