Kill Your Algorithm is a two-part Digiday podcast special exploring the implications of a more aggressive Federal Trade Commission. Sometimes referred to as weak and toothless in past years, the FTC is sharpening its fangs under the tough new leadership of Chairwoman Lina Khan, who has already guided policy changes that could have a big impact on how the agency addresses privacy and antitrust abuses of data-hungry tech. But party-line votes among FTC commissioners signal heightened internal partisanship at the agency, known historically for rising above the political fray. And some worry getting too aggressive or political could backfire.

Episode Two: The Vault of Power

When President Joe Biden’s administration named antitrust reform scholar Lina Khan as chair of the FTC, it didn’t take long before Amazon and Facebook asked for her recusal in cases related to the two companies. But even as lawmakers call for regulators to rein in big tech algorithms, partisanship and politics could conspire against giving a Khan-led FTC any more money or power to help do it. And some who recall the 1980s-era episode that led Congress to drastically diminish the FTC’s authority once before warn against the risks of enacting rules or changing policy without consensus.

Transcript

Kill Your Algorithm credits:
Kate Kaye, reporter, scriptwriter and host
Sara Patterson, producer
Priya Rao, script editor
D. Rives Curtright, original music

News report montage

She has in the past written reports slamming major tech giants Amazon, Apple, Alphabet Inc as well as Facebook for using monopolistic practices to maintain their market dominance.

It’s a sign that the agency is likely to crackdown on the industry’s tech giants.

REP. JIM JORDAN (R-OH)
So the person who helped write the bills that give all the power to the FTC, now is gonna run the FTC. Such a deal.

KAYE
When antitrust scholar Lina Khan was overwhelmingly approved by the Senate in a 69-28 vote to serve as an FTC commissioner in June, consumer watchdogs and privacy advocates rejoiced. 

Then, the shocker: Not only would the 32-year-old rockstar House staffer have a voice as a commissioner — Lina Khan would lead the agency as its new chairwoman. The policy wonk Twittersphere erupted. There were even snarky memes about it.

This could mean real change, people said. By leading the FTC — which has authority to stop unfair and deceptive business practices that fuel monopolies and harm consumer privacy, Khan could help rein in big tech.  

KAYE
Khan was well-known in antitrust policy circles by the time her name was floated as a possible FTC commissioner. She’d already laid her cards out when it came to her thoughts on big tech.

In a paper published in the Yale Law Journal called Amazon’s Antitrust Paradox, Khan argued that the old way of deciding whether companies were too dominant in the marketplace should change. Instead, she said when regulators like the FTC evaluate unfair competition, they should recognize the drastically evolving realities of the tech industry right now — and in the future.

For instance, she suggested that regulators could change how they assess pricing that undercuts competitors to reflect the fact that tech platforms might use money from investors to make up the difference when they price products much lower than their competitors can afford to. 

More recently while working for Democrats on the House Antitrust Subcommittee, Khan was an instrumental force behind a big tech investigation and subsequent report concluding that Amazon, Apple, Google and Facebook each dominated massive swaths of the economy. The report laid out ways to restore competition in digital markets. One of those was to improve the Federal Trade Commission Act, the law that created the FTC in 1914 and has since been watered down.

Khan was open about her personal beliefs during a Senate nomination hearing two months before she was confirmed.

LINA KHAN
I’ve been quite public about my concerns about concentrated power in the context of digital markets. I think on the competition side we’re continuing to see a whole range of potential risks. One that comes up across the board is the way in which being able to dominate one market gives these companies in some instances the ability to expand into adjacent markets and the self-reinforcing advantages of data make it much easier to capture an entire ecosystem. 

I think on the consumer protection side there’s some really interesting questions to be asked, specific to behavioral ad-based business models in so far as, you know, these business models really incentivize endless vacuuming up of data. I worry that in some cases, you know, some of these companies may think it’s just worth the cost of business to actually violate privacy laws. So, those are some concerns that come to mind and I think, you know, it seems like these are growing increasingly bipartisan.

KAYE
In her Amazon paper, Khan pointed to data as a key differentiator that helps big tech platforms such as Amazon accrue more and more power over competitors because it enables them to better understand what people want and better tailor services to them as a result.

And the more they get into new markets, the more the information gleaned from one division of a company can help another part of the company. Ultimately, she argued that control over data not only reinforces market power — it deters other possible competitors from entering a market.

The FTC doesn’t publicize its investigations, but it’s been reported that it is inspecting Amazon’s proposed acquisition of film studio MGM. So, it’s no wonder Amazon asked Khan in July to recuse herself from antitrust probes involving the company.

And it’s not surprising that some worry that Khan has a biased agenda against Amazon and other tech platforms, so they question her ability to address issues related to tech platforms fairly.

My name is Kate Kaye. 

This is Kill Your Algorithm, a two-part Digiday podcast special.

In our first episode, we spotlighted a recent FTC case against period-tracking app-maker Flo Health, and how some said the FTC should have been tougher on the company.

In this, the second and final episode, we’re zooming out to look at how a Khan-led FTC is changing its approach to tackling tech, how it’s addressing the intersecting issues of data privacy and antitrust, how partisan rancor and politics are influencing the FTC’s future — and how its past could get in the way. 

Not long after Amazon asked Khan to recuse herself from cases against it, Facebook did the same. The social media giant petitioned her to bow out of any decisions concerning Facebook — including in the FTC’s current antitrust lawsuit against the company. Khan hasn’t recused herself from either Amazon or Facebook cases.

Adam Kovacevich was representing big tech back when big tech was still mostly-celebrated as a catapult to America’s innovative economic future. Kovacevich was the top U.S. public policy guy at Google for over a decade, and later had a similar role at ride-sharing firm Lyft. He recently founded Chamber of Progress, an industry trade group weighing in on tech policy and legislation. The group is funded by big tech firms including Facebook, Twitter and Instacart — and yes, the companies he once represented — Google and Lyft.

ADAM KOVACEVICH
I will say from personal experience having worked at Google when Google was being investigated by the FTC for two years over its practices mostly in search and advertising, we definitely had a concern at the time that certain FTC commissioners had pre-judged the company’s guilt, and so I can understand why Facebook and Amazon might feel the same way here.

I would be surprised if Chairwoman Khan does recuse, but I do think there’s a very real possibility that Amazon and Facebook will cite her past comments in any future litigation proceedings between the FTC and those companies.

KAYE
Since I spoke with Kovacevich this summer, Facebook has done just that. When a judge dismissed an earlier version of the FTC’s pending antitrust case against Facebook, the FTC was given the opportunity to revise the suit against the company. It did, and then in a motion to dismiss the revised case, Facebook argued that Khan was biased because of her work on that House big tech antitrust report.

As the tech industry and its investors fret over what Khan’s influence might mean for them, the Biden White House has pushed her to go harder. The FTC seems to be taking the cue — and that revised lawsuit against Facebook is exhibit A. 

An executive order from President Joe Biden in July called on the chair of the FTC to consider data and privacy issues in relation to market dominance. It encouraged the FTC to use its existing rule-making powers to address what it called “unfair data collection and surveillance practices that may damage competition, consumer autonomy, and consumer privacy.” 

The revised version of the FTC’s antitrust suit against Facebook incorporates privacy. In it, the FTC points to its earlier privacy settlements with Facebook — including the 2019 settlement over the Cambridge Analytica data grab that led the agency to fine Facebook five billion dollars.

Essentially, the FTC argues, the fact that Facebook has not lost significant user engagement even though the company degraded people’s experience on the platform by misusing their data in the past — proves it has dominant market power.

When it comes to tech, antitrust and privacy are intertwined, says Alysa Hutnik, the privacy and information security lawyer we met in our first episode.

ALYSA HUTNIK
We’ve seen new leadership at the FTC that is extremely focused on technology and antitrust and if you have technology and antitrust as a laser point focus, privacy is right behind that and is absolutely going to have to be addressed as part of that or will have other effects that will implicate privacy.

I think the other part of it is that on antitrust law, the FTC has a pretty narrow path on what it has been able to do on applicable law, and for that to change there’s a lot who say that legislation really needs to make that change, that it can’t just be something the agency can do on its own, that the agency has been acting within the lines but judges over the years have really narrowed that authority. So, I think there’s public perception and then there’s what the agency feels legally it can actually do.

KAYE
Right. And the thing is, when it comes to public perception, the FTC doesn’t make for many blockbuster headlines when it fights unfair corporate practices. I mean, FTC commissioners aren’t typically characters in spy novels that inspire film franchises.

Like, you’re not gonna see Lina Khan and a bunch of cops on the nightly news… busting through the front doors of Facebook headquarters with a battering ram… confiscating laptops, and computer servers and kegs of kombucha.  

To the average everyday person, the moves the FTC makes might not seem like much at all. You’ll see statements on FTC letterhead… or hear Khan and the other four commissioners dryly discussing administrative issues — things like procedural changes or updates to rules.

KHAN
Good afternoon. This meeting will come to order. 

KAYE
Khan welcomed a rapt crowd of viewers — from consumer advocates and policy wonks to antitrust lawyers, tech analysts and live-tweeting reporters — in July to a rare FTC meeting that anyone in the public could watch virtually.

KHAN
We’re meeting in open session today to vote on several items before the commission. This meeting is the first open business meeting of the commission in 20 years and we will be taking a final vote on several matters.

KAYE
Let’s be honest. Most people wouldn’t hear Khan’s voice or watch her eyes as they tracked her notes for the meeting and say, “Damn, she’s mean. She’s scary. Khan will eat us for lunch.”

But none of that matters. The tech industry and its investors were on guard watching her every move that day. 

CNBC REPORT
This was a controversial move led by the new FTC chair Lina Khan during her first public meeting and it could signal more aggressive action, especially against big tech, in the future.

KAYE
So what was it that a business news outlet like CNBC thought was so controversial?

Well, it was one of those wonky changes that go over most of our heads, but mean a lot to others who are in-the-know. 

And it matters because it was one of many policy shifts that Khan has led during her first few months heading up the FTC which was decided along party lines.

The change involved Section 5, a specific part of the FTC Act — that legislation passed more than a hundred years ago by Congress to create the FTC. 

Section 5 is what gives the FTC the power to declare unfair or deceptive practices as unlawful. 

During the Obama administration, a bipartisan majority of the FTC’s commissioners said that they would only enforce Section 5 when other antitrust laws were not already being used in a case against a company — and if they did use it, it would only be in relation to conduct that harms consumers. 

But during that meeting this year, the FTC changed their tune and voted in a 3-to-2 decision to broaden how they plan to interpret the law. Some legal experts said the decision was a significant expansion of how the FTC had typically used Section 5. 

Khan and the other two Democratic commissioners — Rebecca Slaughter and Rohit Chopra — voted in favor of expanding interpretation of Section 5. (Chopra, by the way, has since moved on to run the Consumer Financial Protection Bureau.)

But the FTC’s two Republican commissioners, Christine Wilson and Noah Phillips opposed the Section 5 expansion.

In her explanation for her “no” vote, Commissioner Wilson emphasized the fact that the FTC was overturning an interpretation that had been adopted on a bipartisan basis.

Here’s Commissioner Wilson from that meeting.

CHRISTINE WILSON
We can expect that antitrust enforcement will reflect political motivations rather than reasoned and objective assessment of benefits and harms to consumers. Enforcement based on political motivations rather than economic analysis would produce outcomes that are unpredictable and lack credibility. 

KAYE
Adam Kovacevich — whose big tech-backed Chamber of Progress aims to influence elected Democrats in particular — said that the Section 5 change could lay the groundwork for the FTC to bring bolder cases in the future. 

KOVACEVICH 
There are progressive critics on the left who would say that the old way of doing things at the FTC led to too many approvals of mergers, or not enough active enforcement, they didn’t bring enough cases. One response to that would be — bring more cases, and I think there are many activists who want the FTC to bring more cases. And some would say, even if they lose. I’ve heard that — I’ve heard some say, “I want the FTC to bring more cases and they may lose some of them but bringing more cases is a good thing.” 

We’ll see if that pans out. 

So, I’m not saying that they shouldn’t bring cases. I think they will bring cases whether I want them to or not. But they may find — a good example is the Facebook case, right? So they may find that the judges’ rulings in these cases set back some of the goals they have for bringing these suits in the first place.

KAYE
So the FTC is telling the world it will take a more expansive approach to interpreting the rules and authority it has today. Remember that decision by the FTC to enforce the health breach notification rule against health apps? Not only was it seen by some as a broad expansion of how the law should be interpreted, the vote to make the change was another one along party-lines, pitting the FTC’s three Democrats against its two Republicans.

Privacy advocate Pam Dixon — the executive director of World Privacy Forum — was among those who pushed for the FTC to reevaluate how it enforces that health rule. And she has watched closely as the agency works its way through a list of other existing rules addressing huge issues like children’s privacy and identity theft. 

But despite partisan votes on these rules, Dixon said the FTC’s recent changes don’t necessarily signal that it is overstepping its boundaries. Still, she worries that some in Congress might think it has. 

DIXON
They don’t have expanded authority in the rulemaking area at this point, but they are aggressively reviewing what they already have, and that’s actually a big deal right there. 

Do they have more authority right now? No, they don’t. They’re just making decisions that, actually, it can be argued that they’re stepping a little bit over the lines — not terribly. We’re not pole-vaulting over the lines here, but it’s more than what has been in the past, but it remains to be seen what the Congressional reaction to this will be and I think that’s what’s making everyone very nervous right now.

KAYE
Longtime insiders and observers say the FTC these days feels more partisan than it has historically. Votes weren’t always party-line. The FTC seemed to rise above the political fray.

Jessica Rich spent 26 years at the FTC. Starting in 2013, Rich was director of the FTC’s Consumer Protection Bureau. She’s considered instrumental in getting the FTC’s privacy program underway, and in laying the groundwork for how the agency addresses tech. Rich left the FTC in 2017. 

We spoke in August, before she joined law firm Kelley Drye and Warren to work in its privacy and advertising practice group.

JESSICA RICH
So, I do think the agency’s more partisan than the time that I was there, but it didn’t just happen overnight. It’s been happening for about the last ten years I think. We see more 3-2 decisions, we see more acrimony.

And I think the FTC’s prized identity as an independent agency is also fading. You see more political connections that would not have been thought of as appropriate in prior years because the FTC so prided its identity as an independent agency. 

But I do want to say, the current intention is a good one. It’s to act strongly for consumers. That’s really good, and I support strong consumer protections. 

Also in the long run, no one will remember if any single matter was 5-0 or 3-2, what matters is that an action was brought or a rule was passed, you know, was enacted. 

KAYE
Another way to look at those 3-2 decisions — rather than only seeing them as partisan — is that these are examples of Khan and the other Democratic commissioners reinterpreting existing rules — essentially sharpening the FTC’s fangs — which some argue have gotten a little dull over the years. And if you look back even at very recent cases taken up by the agency, you’ll see why they want to do that.

Take Flo. To some, failure to enforce the health breach rule in the Flo case, was just another example of the FTC being too weak, not using its existing rules to the full extent it could. 

The party-line votes to change how the health breach notification rule and Section 5 are enforced in the future arguably make the FTC tougher without pushing to make new rules that could be even more controversial. 

But to Rich, that whole narrative — the one that portrays the FTC as historically toothless or inept — is a faulty one. In fact, she said that in her time, the FTC was seen as too harsh on business, not too lenient.

RICH
Most of the time it was accused of being too aggressive, not too weak. 

So there’s a narrative that’s been flipped, just in the past couple years. But it’s really not accurate in my experience. So, during my time the FTC built the privacy program from nothing. No one gave the FTC this mandate. We created it from our general authority over unfair and deceptive practices brick-by-brick which is what it takes when you’re building something out of nothing and you want it to stay around. It’s now one of the most influential privacy programs in the world. 

KAYE
Rich pointed to a list of tech firms that were charged with unfair practices and are under order by the FTC.

RICH
We brought hundreds of privacy and data security cases during that time. All of the major platforms: Facebook, Google, Twitter, Microsoft, Apple are under order with the FTC. There were many actions, hundreds of actions against multiple types of social networks, apps, data brokers, data processors, retailers.

And this was all in the face of real limits on authority — big gaps, no civil penalties — and very small size relative to other agencies, and a very different political environment.

KAYE
Why was the FTC considered too overreaching then, in your perspective? Why was, why was there pushback in your mind?

RICH
Well, it was a very different political environment. Companies that now support — companies, and you know, a Republican party that now supports privacy legislation and reining in the platforms believed earlier that any kind of regulation or enforcement would chill innovation and growth. So, there was a very different attitude, and whenever you’re building something from nothing, which the FTC did in the privacy area, you’re naturally going to create obstacles because you’re pushing. And, I’m extremely proud of the work we did and now it’s accepted and people want to build on it. But at the time, we were more often called aggressive than, than weak. 

KAYE
To understand that different political environment — when people were threatened by an FTC that could go too far — it helps to know a bit about a particularly important episode in its history. 

We’ll get into that right after this break.

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I hope he doesn’t mind us having Cookie Crisp cereal without him.

Fol your friends with magic tricks. Two in each specially-marked box of Cap’n Crunch cereal

KAYE
In the 70s, kids like me got up super early to watch Saturday morning cartoons laced with advertising for sugary cereal and snacks loaded with yummy empty-calories. 

After years of pushing for advertisers and the TV industry to self-regulate, the FTC stepped in to stop what it considered to be manipulative messaging promoting unhealthy foods to impressionable young minds. 

The FTC in 1978 proposed an outright ban on ads aimed at kids. 

A series of hearings investigating the impact of children’s advertising, known as the Kid Vid hearings, sent the ad industry into a tailspin. 

Pundits railed against a government that had infiltrated every facet of our lives — a government that was now saying that even parents didn’t know best how to feed their own kids.

The Washington Post editorial board called the FTC a National Nanny. 

By 1980, the FTC’s nanny state reputation collided with the message of Ronald Reagan’s presidential campaign. The Republican hero said it was time to stop government overreach. It was time to stop feeding the big government beast.

Amid a congressional budget impasse spurred on by concern over how the agency had handled Kid Vid, the FTC literally shut down operations for a brief period that year. 

Soon thereafter, Congress passed the FTC Improvement Act. It put an end to the commission’s authority to make new rules addressing children’s advertising on the basis that it is unfair. And it slashed other FTC authority.

Let’s put it this way — the FTC got its wings clipped. 

So yes, even though Jessica Rich wasn’t around at the FTC until 1991, Kid Vid left a mark on the agency that affected her and others while she was there. And it’s one that lingers today. 

RICH
The FTC was squashed after Kid Vid. It was cut in half and its authority was taken away and we still see that in the rulemaking powers that it has, the limited rulemaking powers that it has.

KAYE
Rich told me the FTC has not overstepped its boundaries or done anything nearly as aggressive as what led to the congressional backlash against Kid Vid.

RICH
I think it’s important to emphasize that at least in my view, nothing I’m seeing at the FTC so far, what the FTC has currently done, versus what’s just been talked about, approaches the events that happened in Kid Vid.

The sky is not falling. Much of what’s happened is preparing for later action. Changing policy statements, changing procedures. We will need to see what cases and rules the FTC actually initiates before we make judgements about whether there’s overreach. 

KAYE
The FTC’s budget has grown incrementally over the years from $66 million dollars in 1980 to around $350 million dollars today. 

But the approximate number of people on staff has declined drastically. Back in the Kid Vid era in 1980 there were around sixteen hundred people on staff. Today, there are only around eleven hundred.

Legislators have tried to get the FTC more funding and resources, often writing it into various antitrust and data privacy bills. Many argue that without a bigger budget and more skilled staff who understand digital markets and the algorithms that undergird them, the FTC cannot address the complex problems brought on by data collection and big tech. 

The boldest move yet from lawmakers was an amendment to Biden’s Build Back Better Act to give the FTC $1 billion dollars to use over a ten-year period. At the time this podcast was produced, that legislation was stuck in a political morass, but the idea behind all that funding is to help the FTC create a new bureau that would focus on tackling unfair or deceptive data privacy and security abuses. 

Democrats supporting the measure recognized the dire need for FTC staff and funding. They even pointed to the fact that data protection regulators in Europe are far better resourced than the FTC

Here’s Jessica Rich.

RICH
Hundreds more employees are needed so the FTC can bring more cases and hire experts and technologists. And also I believe the FTC needs to create a new bureau. It’s got the competition bureau now and the consumer protection and it’s got the bureau of economics, but it needs a data protection bureau that would marry parts of the competition mission and parts of the consumer protection mission.

I think Congress should give the FTC supervisory authority over certain entities like platforms and data brokers, which would enable the agency to look at their compliance across many different laws and even get the algorithms that everyone is concerned about and examine those algorithms.

KAYE
Even Adam Kovacevich — whose group is funded by Facebook and other large platforms — said the FTC might have won its still-pending antitrust case against Facebook in the first round if it had better resources. 

KOVACEVICH
So, unfortunately I think when you combine the lack of resources with the pressure on the FTC to bring big, bold cases it could increase the odds that it loses cases where it hasn’t done its homework. And so I think to the extent that we all want the FTC to bring cases where it truly finds real problems of competition and consumer protection violations, then you should want it to have more resources and you should want it to do its homework.

KAYE
Now, Congress is signaling even more scrutiny of Facebook. Whistleblower Frances Haugen exposed internal research showing the company has amplified angry, divisive content, and knew that its platform, Instagram, can be detrimental to teen girls’ mental health. 

We can expect social media firms to be under increasing pressure to expose their content moderation and ranking algorithms, making them more transparent so they can be assessed by regulators. 

Already some legislation calls on social media firms to provide transparency reports detailing how their content moderation algorithms work. Some bills ask the FTC to create rules to guide implementation if they become law, and give the agency the power to enforce them. 

A loose set of legislative ideas for regulating big tech companies proposed this July by House Judiciary Committee Republicans argued that if large platforms don’t make their content moderation decisions public with — quote — “specificity and particularity” — they should incur a massive fine.

But some of those same Republicans are putting up roadblocks to getting more money and authority for the FTC.

Florida Republican Gus Bilarikis had previously admonished Facebook CEO Mark Zuckerberg for wanting to create a version of Instagram for kids. But he also opposed that ten-year billion-dollar cash injection for the agency. He said giving the FTC so much money without a federal privacy law in place, could become — quote — “nothing more than a socialist slush fund.” 

Then there’s Ohio congressman Jim Jordan — the top Republican on the House Judiciary Committee. Jordan is a vocal critic of what he says is a big tech conspiracy to censor conservative voices. Even so, he’s eschewed the idea of giving a Khan-led FTC much of anything.

Jordan fought a package of bipartisan antitrust bills that were aimed at curtailing the power of big tech with the help of more funding and authority for the FTC. The legislation was also opposed by Chamber of Progress, the big tech-backed group run by Adam Kovacevich. 

In a congressional hearing, Jordan argued against one of those bills that would give the FTC more money. He said that because the bills were inspired by that investigation and report on big tech that Khan helped write while working for powerful House Democrats, the legislation would create new problems for businesses.  

JORDAN
The new chair, last week, Ms. Lina Khan, previously worked for Chairman [Jerrold] Nadler, Subcommittee Chairman [David] Cicilline and House Democrats on the Judiciary Committee. So the person who helped write the bills that give all the power to the FTC, now is gonna run the FTC. Such a deal. 

The Federal Trade Commission run by Biden Democrats who want to fix systemic racism, set up special government committees of whatever size they want — technical committees made up of your competitors, advocacy groups and academics. Or, in other words, people who want your business to fail, Soros-backed individuals, and someone like Senator [Elizabeth] Warren.

KAYE
Ultimately, even people who strongly support the mission of the FTC to protect consumer privacy and stop monopolistic practices fueled by data collection, worry that politicization inside the agency could get in the way.

They worry it could exacerbate the very partisan opposition that puts up barriers against the agency when it comes to attaining the resources most agree it needs to address the problems brought on by data-driven, algorithmic tech.

Longtime consumer protection and privacy advocates like Pam Dixon and Jessica Rich say that despite all the pressure to toughen up the FTC, the agency’s leaders could benefit from considering multiple sides of issues they address, and building consensus. 

Here’s Dixon.

DIXON
It’s a bit political, and that’s always I think a dangerous thing. Really, I think the FTC does its best work when it builds consensus, when it is very, very cautious to ensure that there is broad, both Congressional and agency support and staff support for opinions, and I think that when it gets away from more of the consensus model, I think that’s when the, you know, shades of Kid Vid fears come back to the FTC staff who were around to see all that.

KAYE
For Rich, if the FTC moves on a hyper-political, hyper-partisan path, it could be blocked from doing what it was established to do — to protect consumers no matter who’s in power in Congress and the White House. Politics and partisanship, she says, could steamroll past the sort of nuance that helps foster lasting change. 

RICH
If there’s a broad continuing trend of partisan [sic] and acrimony there are some real downsides to the agency. The agency’s less likely to garner bipartisan support from Congress, even on things that shouldn’t be controversial. During my time at the agency, when the FTC lost its litigation over Do-not-Call which it had tried to enact and was challenged, Congress acted in one or two days in a bipartisan way to uphold — to pass a law — giving the FTC the authority courts had said it didn’t have. And the FTC could lose that kind of bipartisan support that it’s enjoyed at least in certain areas.

Now, Congress tends to be pretty partisan in a lot of areas without help from the FTC so I don’t want to overstate that. 

But another thing: Partisanship can also lead to group-think. I really benefited from different points of view during my time there. Ultimately, I always wanted to do what was best for consumers but inputs from different perspectives were always very important, and if it’s only going to be three people and you’re not gonna consider those other inputs, I think that something is lost. 

KAYE
Whether the FTC is weak and needs to get tougher against tech firms to protect consumers is up for debate. 

But even the few shifts it has made so far to the ways it will enforce its existing authority have caused a stir. 

Look at its settlement over the Flo app discussed in our first episode. That case sparked a change to enforcing that wonky health breach notification rule against health apps. It’s causing a lot of pushback from business — and businesses influence Congress. 

Only time will tell how these sorts of actions will affect everyday people. If the FTC cracks down harder on — say, period trackers or fitness apps — will companies be more forthcoming about how they share people’s intimate information? Will they stop collecting or sharing some data?

We just don’t know yet if these moves will lead to better protections for people from unfair and deceptive data practices. 

Meanwhile, a lot of the impact the FTC might have could be limited, if Congress continues to stall on passing a Federal privacy law.

Either way, clearly some people think the FTC should have fought way harder against Flo Health. In fact, other lawyers are taking over where the FTC left off. Right now, a class action lawsuit against the company — one that combines multiple smaller suits — is underway.

Ultimately, even people who think the FTC needs more authority and resources to take on big tech — even some who’d like to see algorithms destroyed — argue over how the FTC should do it. 

This new FTC is just getting started.

That’s it for Kill Your Algorithm. Thanks so much for listening. My name is Kate Kaye. I’d like to thank the team at Digiday for giving me the time to put together this special episode of the podcast. And big thanks to our producer, Sara Patterson. If you dig the music you heard during both episodes, you can check out the latest work from its creator — musician and songwriter D. Rives Curtwright — it’s called Night of the Boot and you can find it on streaming services including Spotify.

Until next time.

Original Source