In law and policy, words matter. So in a recent comment on a Federal Trade Commission (FTC) Advanced Notice of Proposed Rulemaking (ANPR), Neil Chilson and I fixed on the selection of “commercial surveillance” as the object of the FTC’s interest. The phrase adds yet more confusion to an area of policy already susceptible to muddy thinking: privacy and data security. Back to the drawing board, we argue, and at the drawing board, the FTC should do several things differently.
For those who aren’t utterly steeped in regulatory process
, an ANPR is an optional process available in the preliminary stages of rulemaking. It invites the public to participate early in shaping forthcoming rules. The idea—not terribly evident in practice—is that early input will tune an inquisitive, open-minded, and pliable agency to genuine problems and sound solutions.
That theory of agency open-mindedness is rather debunked by the present