2023 is turning out to be an eventful year for privacy policy.  The FTC has proposed modifications to its Facebook order that would keep Facebook from monetizing data from minors, and has flexed its enforcement powers through a broad interpretation of its Health Breach Notification Rule—one that it now wants to codify.  At the same time, a federal judge dismissed the Commission’s case against Kochava for failure to sufficiently allege consumer harm, and the Supreme Court dealt it another blow to the FTC in Axon, which is likely to spur additional challenges to the constitutionality of the FTC and its (recently amended) administrative adjudication procedures.   All the while, Congress continues to consider various privacy bills, with the American Data Privacy and Protection Act (ADPPA) appearing to gain the most traction.  And states are jumping in to fill the void left by congressional inaction with their own privacy laws, as well as laws directed at social media platforms.

New research from James Cooper, Garrett Johnson, Tesary Lin, and  Liang Zhong uses YouTube’s settlement with the Federal Trade Commission over allegations that it violated the Children’s Online Privacy Protection Act (COPPA) as a natural experiment to evaluate the impact of eliminating personalization— including tailored ads and platform features like personalized search and content recommendations—on made-for-kids content.  The study of  5,066 top American YouTube channels from 2018-2020 finds that child-directed content creators produce 13% less content and pivot towards producing non-child-directed content. On the demand side, views of child-directed channels fall by 22%. Consistent with the platform’s degraded capacity to match viewers to content, the study finds that content creation and content views become more concentrated among top child-directed YouTube channels.  Read the full study here.

University of Texas at Austin Fred And Emily Marshall Wulff Centennial Chair in Law Abraham Wickelgren has a new publication titled “Optimal Privacy Regulation When Consumers Make Inferences From Regulatory Policy“. The piece can be accessed here.

St. Thomas University Benjamin L. Crump College of Law Assistant Professor of Law Gregory M. Dickinson has published a new paper titled “Privately Policing Dark Patterns“. The publication can be accessed here.

Li Jiang, Assistant Professor of Marketing at George Washington University School of Business, has a new paper on the effects of the EU’s data privacy law, General Data Protection Regulation. The piece can be accessed here.

Last week the LEC’s Program on Economics & Privacy (PEP), along with University of Arizona’s TechLaw, filed a comment in response to the Federal Trade Commission’s (FTC) Advance Notice of Proposed Rulemaking on “Commercial Surveillance and Data Security.”

The Comment urges the FTC to refrain from issuing a proposed Commercial Surveillance rule. After describing the available empirical evidence—which shows the tremendous consumer value generated by the online ad-supported ecosystem and little reason to believe that consumers suffer widespread harm from the routine collection and use of data in the online commercial context—the Comment concludes that departure from the FTC’s current case-by-case application of Section 5, in favor of broad prohibitions on the collection and use of data, is likely to do more harm than good.

You can view the full joint comment here.

Program on Economics & Privacy Director James Cooper moderates a panel of experts for a discussion on the FTC’s privacy rulemaking authority. Click here to watch the video.

The report, titled “Private Litigation Under the California Consumer Privacy Act – CCPA Report Update,” examines the private actions filed under the CCPA from April 1, 2021 through December 31, 2021.

Executive Summary
The California Consumer Privacy Act (CCPA) went into effect on January 1, 2020. Broadly, the CCPA is designed to protect consumers’ privacy by making the collection and use of consumer data more transparent, and giving consumers the right to prevent companies from sharing their data with third parties. Although these core privacy provisions are enforced exclusively by the California Attorney General, the CCPA also provides a private right of action when a business’s failure to implement “reasonable security practices and procedures” results in the theft of personal information.

In 2021, the Program on Economics & Privacy issued its initial report, “Private Litigation Under the California Consumer Privacy Act,” which examined private CCPA cases filed from its effective date (January 2020) through the first quarter of 2021. This new Report provides data on private actions filed under the CCPA from April 1, 2021 through December 31, 2021, and highlights developments in cases covered in the 2021 Report.

Please click here to read the report.

Program on Economics & Privacy Director James Cooper interviews FTC Commissioner Noah Phillips on the Outlook for Privacy and Digital Ads as part of a discussion hosted by the Network Advertising Initiative (NAI). Click here to watch the video.