Privacy and data security professionals have been closely monitoring the ongoing battle regarding a new proposed federal law, the American Data Privacy and Protection Act ( ADPPA), which in July made it out of committee with surprising bipartisan support, and which could change the privacy landscape throughout the country, preempting multiple state laws and setting a uniform standard for privacy and data security compliance. But while the ADPPA has been re-negotiated and revised over and over again, the Federal Trade Commission (FTC) has been brewing up its own set of privacy and security rules. On August 11, 2022, the FTC issued an Advance Notice of Proposed Rulemaking (ANPRM), which asks for public comment on 95 questions on a variety of privacy and data security topics, touching almost every industry in the nation. Comments are due within 60 days of publication of the ANPRM in the Federal Register, and a virtual forum will be held on September 8, allowing members of the public to speak for two minutes.
Some commentators have speculated that the FTC’s ANPRM is a reaction to the ADPPA losing some steam in Congress – the FTC might be attempting to pressure lawmakers to find a workable solution and pass a federal law before the midterm elections, which will likely cause additional setbacks in legislation. If the FTC is planning on pushing forward its new rulemaking at the same time as Congress is finalizing – and hopefully passing – the ADPPA, the potential conflicts could be significant, and cause headaches to businesses spanning multiple industries and business models.
The FTC derives its power to regulate privacy and data security issues from Section 5(a) of the Federal Trade Commission Act (FTC Act) (15 USC §45), which prohibits “unfair or deceptive acts or practices in or affecting commerce.” This short sentence has given, in over a century since it was enacted, tremendous power to the FTC to regulate unfair, deceptive, or unfair and deceptive privacy practices. Unfair privacy practices are those that are injurious to consumers, unethical or unscrupulous, whereas deceptive practices are those that may mislead customers, such as when a company does not follow its own stated privacy policy. With this jurisdiction vested in it by the FTC Act, the FTC has enforced privacy and data protection violations in a multitude of industries, levied many millions dollars of fines, and required businesses to completely overhaul their privacy and data security practices and procedures through consent decrees and court orders. If the new FTC rules are finalized and implemented, there will be yet another body of privacy law for businesses to become familiar with and abide by.
Rulemaking of this type can be a lengthy procedure, often taking five years or more. It is possible that the FTC is indeed signaling that, should Congress fail to pass an umbrella federal statute governing privacy and data security, it will fill that federal void on its own. Either way, the message is clear: legislative changes are forthcoming in the near future, and it is the responsibility of every potentially-affected business to stay up to date on the newest requirements.
- Partner
Ella A. Shenhav is a partner in the Tampa office of Shutts & Bowen LLP, where she is a member of the Business Litigation Practice Group. She is a Certified Information Privacy Professional (CIPP/US), accredited by the International ...
Search Blog
Follow Us
Recent Posts
- Breaking News: FinCEN Postpones Beneficial Ownership Reporting Deadlines for Companies Impacted by Recent Major Storms
- What You Need to Know About the U.S. Department of Transportation’s Build America TIFIA Loan
- Breaking News: Federal Judge Blocks Nationwide Implementation of the FTC’s New Rule Banning Noncompete Agreements
- September 4th is Almost Here: How Employers Can Prepare for the Upcoming Effective Date of the FTC’s Non-Compete Rule
- Florida’s New Statutory Home Warranty: What Home Builders Need to Know
- Orange County Proposes Temporary Suspension Ordinance on New Development Applications
- Raising the Roof: The U.S. Department of Labor Announces Rule Raising Salary Thresholds for Overtime Exemptions
- New Guidelines Anticipated Following HHS’s Health Cybersecurity Concept Paper
- SECURE 2.0 and Protecting Your Designated Beneficiaries
- Florida Appellate Court Provides Further Guidance Regarding New Summary Judgment Rule
Popular Categories
- Employment and Labor
- Construction
- Business of Real Estate
- Construction Litigation
- Landlord-Tenant
- Litigation (Labor & Employment)
- Competition
- Real Estate Law
- Cybersecurity
- Intellectual Property
- Public Private Partnership
- Appeals
- Construction
- Litigation
- Contracts
- Trusts and Estates
- Development/Land Use
- Data Security
- Business
- Supreme Court
- Public Finance
- Privacy
- Technology
- IP Litigation
- Litigation (Appellate)
- Patents
- Business
- Regulatory Compliance
- Florida Government Contracts
- Foreclosures
- Trademark
- Health Care
- Contracting
- Financial Institutions
- Compliance
- Estate planning
- International Dispute Resolution
- Property Tax
- Florida Public Contracts
- Government Contracting
- Government Contracts
- Conveyances
- Government
- Lease
- Appellate Blog
- Patent Office
- Insurance
- Wealth planning
- Federal Government Contracting
- Florida Bid Protests
- Public Contracts
- Cyber fraud
- Infringement
- Proposal Writing
- Public Bidding
- GAO
- International Arbitration and Litigation
- Bid Protest
- Arbitration
- Americans with Disabilities Act
- International
- Restrictive Covenants
- Grant Writing
- Copyright
- Promissory Notes
- Title
- Small Business
- Florida Procurement
- Public procurement
- Consumer Privacy
- PTAB
- General Liability
- Technology
- International Arbitration
- Liens
- Liens and encumbrances
- Creditor's Rights
- Bidding
- Attorneys' Fees
- Inter Partes Review
- Power Generation
- Consumer Protection
- Regulation
- Contracting
- Government Vendor
- State Government Contracts
- Venue
- Ad Valorem Assessments
- Florida Administrative Law
- Attorneys' Fees
- Florida Rules of Appellate Procedure
- Bankruptcy
- Florida Public Procurement
- Russia-Related Arbitration
- Mortgages
- Record on Appeal
- Eviction
- FINRA
- Rehearing
- Loan guaranties
- Patents - Assignor Estoppel
- Dispute Resolution
- Statute of limitations
- Statute of repose
- Liens
- Maritime
- Damages
- Briefing
- Request for Proposal
- Patents - Obviousness
- Commercial Brokerage
- Department of Labor
- Trade Secrets
- Bid Writing
- Florida Bidding Strategies
- Renewal
- Attorneys' Fees
- Florida County Lands
- Florida Economic Incentive Packages
- Jury Instructions
- Stay
- Certiorari
- Design Professionals
- email hacking
- Forum Selection
- Assignment of Contract
- Assignment of Proceeds
- Offers of Judgment
- Prevailing Party
- Settlements
- Banking
- Designer Liability
- Finality
- Fintech
- Lis Pendens
- Appellate Jurisdiction - Deadlines
- Evidence
- Evidence
- Expert
- Expert Science
- Federal Rules of Appellate Procedure
- Marketing/Advertising
- Preservation
- Unlicensed Contracting
- Federal Supply Schedule
- Florida Public Records Law
- Mootness
- Socio-Economic Programs
- Sunshine Law
- Veteran Owned Business
- Homestead
- Partnerships and LLCs
- Standing
Editors
- Of Counsel
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Associate
- Partner
- Partner
- Partner
- Partner
- Senior Associate
- Partner
- Associate
- Partner
- Senior Associate
- Partner
- Associate
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Of Counsel
- Senior Associate
- Partner
- Associate
- Partner
- Partner
- Associate
- Partner
- Partner
- Partner
Archives
- October 2024
- September 2024
- August 2024
- June 2024
- May 2024
- February 2024
- November 2023
- August 2023
- July 2023
- June 2023
- May 2023
- April 2023
- February 2023
- January 2023
- December 2022
- November 2022
- October 2022
- September 2022
- August 2022
- July 2022
- June 2022
- May 2022
- April 2022
- March 2022
- February 2022
- January 2022
- December 2021
- October 2021
- September 2021
- August 2021
- July 2021
- June 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- December 2020
- October 2020
- September 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- October 2019
- August 2019
- July 2019
- May 2019
- April 2019
- March 2019
- February 2019
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016