I.  Introduction

In this proceeding, the National Telecommunications and Information Administration (“NTIA”), on behalf of the Department of Commerce, is seeking public comments on various issues relating to consumer privacy.[1] Given the changing nature of the economy and recent legal developments both abroad and among the various states, a comprehensive review of the Administration’s approach to consumer privacy is both appropriate and timely.

To aid in the development of the Administration’s approach to consumer privacy, the R Street Institute (“R Street” or “RSI”) hereby submits the following comments, which comprise summaries and attachments of our past work on various consumer-privacy issues. These studies and commentaries should help guide the Administration in determining the best path toward protecting consumer privacy while fostering innovation and competition.

II.     Summary of RSI Work on Various Consumer-Privacy Issues

R Street’s mission is to engage in policy research and outreach to promote free markets and limited, effective government. That mission includes policy research and outreach on issues relating to consumer privacy and data protection. The work generated through this research and outreach is briefly summarized below and attached hereto as Appendices A through P.

A.    Tom Struble & Joe Kane, “New Internet Privacy Bill Would Bring European-Style Regulations,” The Daily Caller (May 31, 2017)

This opinion piece analyzes the BROWSER Act, a bill introduced by Representative Blackburn (R-Tenn) in early 2017, and critiqued aspects of the legislation that were overly broad or prescriptive.

B.    Tom Struble & Joe Kane, “A Three-Step Plan to Promote Consumer Privacy,” Morning Consult (June 26, 2017)

This opinion piece offers three concrete steps that Congress can take to improve consumer privacy: (1) repeal the Federal Trade Commission (“FTC”) Act’s common-carrier exemption; (2) preempt the patchwork of state privacy laws and establish a uniform national framework; and (3) provide the FTC with the direction and resources necessary to update and enforce that national privacy framework.

C.    Tom Struble, “For Internet Gatekeepers, Consumer Protection Laws are Better than Utility-Style Regulation,” Brookings TechTank (Sept. 26, 2017)

This opinion piece touches on net neutrality and other issues relating to potential discrimination by so-called “Internet gatekeepers,” arguing that flexible, ex post adjudication using consumer-protection laws is preferable to inflexible, ex ante utility-style regulation for dynamic industries like telecommunications and e-commerce.

D.    Tom Struble, “Senate Finally Poised to Restore FTC to Full Strength,” R Street Blog (Oct. 19, 2017)

This opinion piece applauds the Administration for selecting qualified candidates to fill the open Commissioner spots at the FTC, which is especially vital at this time when key consumer-protection issues, including privacy, are in flux.

E.    Tom Struble, “Resolving Cybersecurity Jurisdiction Between the FTC and FCC,” R Street Policy Study No. 116 (Oct. 2017)

This policy study examines the respective roles of the FTC and the Federal Communications Commission (“FCC”) in regulating cybersecurity issues—as well as several recent court cases and regulatory actions that have thrown those roles into question—before assessing three proposals for how to best divide cybersecurity responsibilities between the two agencies.

F.     Tom Struble, “Reforming the Federal Trade Commission Through Better Process,” R Street Policy Study No. 122 (Dec. 2017)

This policy study identifies key weaknesses in agency process at the FTC, analyzes the negative effects that stem from those weaknesses, and offers several proposals for how to strengthen agency process to ultimately improve regulatory outcomes in areas like consumer privacy.

G.    Tom Struble, “A Positive Agenda for the New FTC,” Morning Consult (Feb. 14, 2018)

This opinion piece offers a positive agenda for the new FTC to pursue, which includes three key pillars: (1) litigating more privacy and data security cases in order to establish more formal precedent to guide industry practices; (2) putting up or shutting up on net neutrality so that Congress can decide whether to leave it with the FTC or move it back to the FCC; and (3) looking beyond the swamp to tackle occupational licensing and other regulatory barriers to competition at the state and local levels.

H.    Charles Duan et al., “Policy Approaches to the Encryption Debate,” R Street Policy Study No. 133 (Mar. 2018)

This policy study examines encryption technology, which is a key way for individuals to protect their personal privacy but has long been the subject of debate due to its effects on law enforcement. As part of that examination, R Street proposes a framework for evaluating the encryption debate in a manner that balances law-enforcement concerns with consumer-privacy interests.

I.      Charles Duan, “A New Framework for the Encryption Debate,” Lawfare (Apr. 9, 2018)

This opinion piece draws on the encryption policy study summarized above to describe the proposed new framework for the encryption debate in a format that is shorter and more easily digestible for readers.

J.      Tom Struble, “New FTC Leadership Should Focus on Results, Not Headlines,” Morning Consult (May 18, 2018)

This opinion piece encourages the new FTC leadership to focus on achieving real results—in terms of both remedies for consumers and doctrinal victories in court—rather than pursuing high-profile actions that generate lots of headlines but ultimately have little impact on the market.

K.    Caleb Watney, “Comments of the R Street Institute on the Consumer Welfare Implications Associated with the Use of Algorithmic Decision Tools, Artificial Intelligence and Predictive Analytics,” Docket No. FTC-2018-0056 (Aug. 13, 2018)

These comments emphasize the importance of examining international regulatory competition and the way that innovation flows across borders. It argues that we cannot simply create our ideal privacy framework in a vacuum and instead must consider the way that tightening privacy laws could make artificial-intelligence (“AI”) development relatively more advantageous in countries like China.

L.     Tom Struble, “Comments of the R Street Institute on the State of Antitrust and Consumer Protection Law and Enforcement, and Their Development, Since the Pitofsky Hearings,” Docket No. FTC-2018-0048 (Aug. 14, 2018)

These comments assess the current state of antitrust and consumer-protection law and how things have changed in these areas since the FTC’s Pitofsky hearings in the 1990s, arguing that recent changes in technology require a recommitment to economic analysis and consumer welfare but not a fundamental reformation of these areas of law.

M.   Tom Struble, “Comments of the R Street Institute on the Commission’s Remedial Authority to Deter Unfair and Deceptive Conduct in Privacy and Data Security Matters,” Docket No. FTC-2018-0052 (Aug. 14, 2018)

These comments assess the FTC’s recent use of its consumer-protection authority to detect and punish unfair or deceptive conduct in privacy or data security, urging the FTC to learn from its recent Wyndham and LabMD cases and to also continue exploring the difficult issue of informational injuries.

N.    Tom Struble, “European Competition Law is Hurting Consumers,” National Review (Sept. 6, 2018)

This opinion piece analyzes the European Commission’s recent enforcement against Google for how it licenses the Android mobile operating system to equipment manufacturers, arguing that the Commission’s analysis was flawed in key respects and will ultimately harm consumers by elevating the interests of competitors over theirs.

O.    Caleb Watney, “Reducing Entry Barriers in the Development and Application of AI,” R Street Policy Study No. 153 (Oct. 2018)

This policy study argues that there are a host of policy barriers making it difficult for startups to compete with incumbent firms in AI development and application. One of the areas highlighted in the study was the potential for excessive privacy laws to disincentivize data sharing, which would disproportionally hurt startups and small businesses.

P.    Jeffrey Westling, “Can BuzzFeed Save Us from Deep Fakes?” Morning Consult (Oct. 23, 2018)

This opinion piece examines issues presented by AI-generated fake video and argued that such technology presents no unique challenges compared to other tools for deceiving consumers, meaning that strict government oversight is unnecessary.

III.     Conclusion

The Administration should be commended for launching this proceeding and seeking public comment on ways to improve the current state of consumer privacy in the United States. We are pleased to contribute our work to this process and we look forward to engaging further with the Administration, federal regulators, and other stakeholders as it proceeds.

Respectfully submitted,

Charles Duan
Tech Policy Director

Joe Kane
Tech Policy Fellow

Tom Struble
Tech Policy Manager

Caleb Watney
Tech Policy Fellow

Jeff Westling
Tech Policy Associate

[1] Developing the Administration’s Approach to Consumer Privacy, Notice; Request for Public Comments, GN Docket No. 180821780-8780-01 (Sept. 26, 2018) [hereinafter RFC], https://goo.gl/o67JrN.