In a 3-2 vote, the Federal Trade Commission authorized eight new compulsory process resolutions, which will allow FTC staff to conduct investigations into certain areas without first obtaining approval of the full Commission. In a statement, FTC Chair Lina M. Khan said that the resolutions, "cover a range of business practices that harm Americans, and staff pursuing investigations into any of these practices will now be able to issue civil investigative demand and subpoenas without delays."
In taking this action, the FTC is highlighting what are undoubtedly going to be key enforcement priorities in the coming months and years. The resolutions, of particular interest to advertisers, covered the following areas:
- Military service members and veterans;
- Children under 18;
- Algorithmic and biometric bias;
- Deceptive and manipulative conduct on the internet;
- Repair restrictions; and
- Abuse of intellectual property.
The resolution authorizing compulsory process related to deceptive and manipulative conduct on the internet specific includes authorization to look into "the manipulation of user interfaces (including, but not limited to, dark patterns" and into the use of e-mail, metatags, and computer code.
Holly Vedova, Acting Director of the Bureau of Competition, said, "These resolutions enable the FTC to take swift action against a whole host of illegal conduct in important areas of concern to the Commission. Companies engaging in conduct implicated by these resolutions should be forewarned: the FTC looks forward to aggressively using these resolutions and will not hesitate to take action against illegal conduct to the fullest extent possible under the law." Samuel Levine, Acting Director of the Bureau of Consumer Protection, added, "Harmful practices – especially those targeting children, veterans, and marginalized communities – will not be tolerated by this Commission. Today’s resolutions ensure our staff can rapidly respond to allegations of abuse and fight fraud without delay.”
In July, the FTC authorized seven other compulsory process resolutions, again by a 3-2 vote. They covered topics such as, deceptive practices related to the COVID-19 pandemic, small businesses, and technology platforms.
So, why did Commissioners Noah Joshua Phillips and Christine S. Wilson vote against these resolutions? In a statement, they explained, "removing Commission oversight of investigations does virtually nothing to make those investigations more effective but does mean less input and oversight from the Commission. These resolutions create less accountability and more room for mistakes, overreach, cost overruns, and even politically-motivated decision making."
"Harmful practices – especially those targeting children, veterans, and marginalized communities – will not be tolerated by this Commission" -- Samuel Levine, Acting Director, Bureau of Consumer Protection