Earlier this week, I attended the National Advertising Division’s ad law conference in New York City, where I heard two top Federal Trade Commission officials express two very different points of view about the agency’s agenda.
On Monday, Samuel Levine, director of the FTC’s Division of Consumer Protection, delivered an address to a room of mostly advertising lawyers. His main takeaway was that the FTC under Chair Lina Khan is “taking ambitious steps to make Americans’ lives better,” including through diligent work to advance privacy and safety online.
The very next day, newly sworn Republican Commissioner Melissa Holyoak addressed the same room of people, but with a very different message.
The FTC may have good intentions, Holyoak declared, but it’s exceeding its congressional authorization and leaving itself open to legal challenges.
We may not always agree, but …
That divergence of opinion, however, is a sign the system is working.
Before the appointments roughly six months ago of Holyoak and shortly thereafter a second Republican Commissioner, Andrew Ferguson, the FTC was operating with only three members, all of them Democrats.
Finally, the Commission is fully operating with five members for the first time since 2022.
A majority either way means many votes fall on party lines – but not always. The Commission takes a bipartisan stance on some issues.
Take the FTC staff report released on Thursday, a highly critical deep dive into the data collection practices of large social media and video streaming platforms.
Although Holyoak and Ferguson had reservations about some of the findings, which they outlined in respective dissenting statements, they both voted to release the report. Because privacy is not – and should not be – a partisan issue.
One-on-one with the FTC
And so, viva la strong and well-reasoned opinions coming from all corners.
Speaking of strong opinions, I had the opportunity to sit down with Director Levine after his address at NAD to get a few of his.
(This interview took place on Monday, which was before the FTC released its bombshell report on Thursday about the “vast surveillance” of consumers.)
AdExchanger: I have a facetious question to start. Does the FTC hate advertising?
SAMUEL LEVINE: We do not hate advertising. I do not hate advertisers. “Mad Men” was one of my favorite shows, and I actually follow accounts on Instagram of old car ads, because I particularly like them, which is probably more than you wanted to know.
Advertising plays a critical role helping consumers shop, and it’s an efficient means to present people with choices. But for this to work, it’s critical for advertising to be honest. That is how we want the market to work.
It’s an understatement to say that you’re not a fan of notice and choice. I’m not a fan myself. I write about ad tech for a living and I have trouble figuring out how I’m being tracked online and what I’ve opted into. What’s an average consumer meant to do?
People sometimes ask me what advice I have for consumers online. I’d say read our materials. We have some good advice. But at the end of the day, this is not a problem consumers can solve. We need industry action and we need government to take a more systematic approach.
Data minimization is a priority for the FTC, but are companies actually doing it?
There is a lag. But we now have data minimization regimes in a number of states, and there already are data minimization regimes overseas. It takes time for enforcement to follow new laws, and we’re just getting started.
But I hope companies are beginning to get the message that there’s been a real paradigm shift, and it’s not just at the FTC; it’s at the state level and in Congress.
The FTC used to take a laissez-faire approach to ad industry self-regulation. That’s clearly changing.
Companies need help navigating a complicated landscape right now where you have the FTC stepping up its work, but also different regimes in different states.
Self-regulatory organizations have a huge opportunity to help guide companies to comply and stay on the right side of regulators. I would hope they embrace that opportunity, because I think they’ll find that enforcers want to work with them.
Do you think the ad industry is capable of self-regulation at this point?
We hear complaints all the time about states passing laws, but I think if we’d seen more robust self-regulation, there might not have been as many states passing laws.
That said, vigorous enforcement can be good for self-regulatory organizations, because it gives them teeth when they issue warnings to companies.
If self-regulatory organizations defend the status quo, however, they risk fading into irrelevance. But if they adapt and play a constructive role in helping companies comply with the law, they can provide real value to their members and to the public.
Answers have been lightly edited and condensed.
🙏 Thanks for reading! And hopefully I’ll see many of you at Programmatic I/O next week in NYC. A few tickets are still available, so get yours. And this is me getting ready like … 😹 As always, feel free to drop me a line at [email protected] with any comments or feedback.
