Last week, PEP responded to the Federal Trade Commission’s (FTC) request for public comment on technology platform censorship of user content.
In this comment, PEP analyzes the First Amendment and the FTC Act to make three main points:
The First Amendment places limits on the Commission’s ability to police technology platforms’ content moderation under the FTC Act;
Several serious legal hurdles are likely to prevent the FTC from establishing that technology platforms’ content moderation decisions comprise “unfair methods of competition”; and
Other than in very narrow circumstances, it is unlikely that platform censorship constitutes “unfair or deceptive acts or practices.”
PEP’s comments emphasize that given heavy dependence on digital platforms for access to vital information, decisions addressing censorship concerns have far-reaching impact. However, the authority Congress granted the FTC to prohibit “unfair methods of competition” or “unfair or deceptive acts or practices” does not appear to be the appropriate mechanism to address these concerns.
Earlier this spring, the Law & Economics Center‘s Program on Economics & Privacy (PEP) submitted a comment to the House Energy and Commerce Committee’s newly formed Privacy Working Group (PWG) in response to it’s Request for Information (RFI).
In the comment, PEP urges the PWG to consider that personalization—through content and ads—drives the online ecosystem. This means that any legislation limiting the ability to engage in personalization is likely to reduce the revenue available to online creators, leading to lower quality and output of content. Second, the comment encourages the PWG to rely, when possible, on revealed preferences (RP)—actual data based on known choices—rather than stated preferences (SP), such as those derived from surveys or polls. Finally, the comment asks the PWG to consider the extent to which competition over privacy can help address market failures in providing consumers with optimal levels of privacy.
Date and Time: Wednesday, March 12, 2025; 12:00 – 1:00 pm EDT
Event Location: Le Méridien Washington, D.C., The Madison; 1177 15th St NW, Washington, DC 20005
FTC Commissioner, Melissa Holyoak sat down with Professor James C. Cooper of Antonin Scalia Law School for a discussion about the Federal Trade Commission’s priorities under the new administration. The conversation focused on key consumer protection and competition issues concerning the digital economy, including AI, privacy, and the recently opened inquiry on Technology Platform Censorship. One highlight of the conversation included the ongoing importance of the role of economics in consumer protection work at the FTC.
This luncheon was sponsored by the Law & Economics Center’s Program on Economics & Privacy at the George Mason University Antonin Scalia Law School.
Melissa Holyoak was sworn in March 25, 2024 as a Commissioner of the Federal Trade Commission. Holyoak brings extensive experience as a litigator and leader. Most recently, she served as Solicitor General with the Utah Attorney General’s Office where she oversaw the civil appeals, criminal appeals, constitutional defense and special litigation, and antitrust and data privacy divisions. She also managed multistate matters including those involving consumer protection and antitrust claims.
James Cooper,
Professor of Law and Director, Program on Economics & Privacy,
George Mason University Antonin Scalia Law School
James C. Cooper brings over a decade of public and private sector experience to his research and teaching. Prior to joining the faculty at Scalia Law, he served as Deputy and Acting Director of the Federal Trade Commission’s Office of Policy Planning, Advisor to Federal Trade Commissioner William Kovacic, and as an associate in the antitrust group of Crowell & Moring, LLP. His research focuses on the law & economics of privacy, data security, and consumer protection, as well as on wide variety of topics surrounding competition policy.
Date and Time: January 23, 2025 12:00 pm – 1:00 pm
The Program on Economics & Privacy presented a virtual webinar, Privacy Policy in the New Administration, hosted by the Law & Economics Center at George Mason University Antonin Scalia Law School.
Our panelists provided a discussion on some of the important developments under the Biden administration, and what to expect in this area from the new Trump administration.
Adam Kovacevich is the Founder and CEO of the Chamber of Progress, a new center-left tech industry policy coalition promoting technology’s progressive future. The organization works to ensure that all Americans benefit from technological leaps, and that the tech industry operates responsibly and fairly. Adam is a veteran Democratic tech industry leader who has had a front row seat for more than 20 years in the tech industry’s political maturation. He is an expert in helping lead technology companies through today’s challenging political environment.
Maneesha Mithal,
Partner, Data, Privacy, and Cybersecurity, Wilson Sonsini Goodrich & Rosati
Maneesha Mithal is a partner in the Washington, D.C., office of Wilson Sonsini and co-chair of the firm’s privacy and cybersecurity practice. Maneesha advises clients on privacy, cybersecurity, and consumer protection matters and represents companies in regulatory investigations. She is also one of the founding members of Wilson Sonsini’s AI group. Maneesha is an internationally recognized expert on privacy and data security, having led the Federal Trade Commission’s (FTC’s) Division of Privacy and Identity Protection prior to joining the firm.
James Cooper, Moderator
Professor of Law and Director, Program on Economics & Privacy, George Mason University Antonin Scalia Law School
James C. Cooper brings over a decade of public and private sector experience to his research and teaching. Prior to joining the faculty at Scalia Law, he served as Deputy and Acting Director of the Federal Trade Commission’s Office of Policy Planning, Advisor to Federal Trade Commissioner William Kovacic, and as an associate in the antitrust group of Crowell & Moring, LLP. His research focuses on the law & economics of privacy, data security, and consumer protection, as well as on wide variety of topics surrounding competition policy.
On Thursday, September 26 – Friday, September 27, 2024, the Program on Economics & Privacy hosted a workshop where authors presented a wide range of empirical research on privacy.
The full agenda for the program may be found here:
PEP’s mission is to inject sound economic analysis into policy discussions surrounding privacy, data security, and other competition and consumer protection issues facing the digital economy. We pursue this mission through research, education, and hosting public policy programs that bring together academics, thought leaders, and government officials for vibrant and balanced discussions.
Program on Economics & Privacy director James Cooper appeared on Our Curious Amalgam, the podcast of the American Bar Association’s Antitrust Law Section. He joined the hosts to discuss the Children’s Online Privacy and Protection Act, proposed changes to the rules enforcing the Act, and the potential tradeoffs to certain proposals.
This one-hour talk examined the recent Department of Justice (DOJ) complaint against Apple, which alleges that Apple has designed and structured its iPhone platform in a manner that violates Section 2 of the Sherman Act. Join us as Professor James Cooper of George Mason University Antonin Scalia Law School, Professor Erika Douglas of Temple University Beasley School of Law, Professor Thom Lambert of the University of Missouri School of Law, and moderator Professor John Yun of George Mason University Antonin Scalia Law School discuss the scope of a platform’s duty to deal, the relevance of privacy considerations in antitrust matters, and the applicability of the seminal Microsoft case in determining the likely outcome.
Panelists
James C. Cooper Professor of Law and Director, Program on Economics & Privacy George Mason University Antonin Scalia Law School
James C. Cooper brings over a decade of public and private sector experience to his research and teaching. Prior to joining the faculty at Scalia Law, he served as Deputy and Acting Director of the Federal Trade Commission’s Office of Policy Planning, Advisor to the Federal Trade Commissioner William Kovacic, and as an associate in the antitrust group of Crowell & Moring, LLP.
Erika M. Douglas Associate Professor of Law Temple University Beasley School of Law
Erika M. Douglas is an Associate Professor at Temple University Beasley School of Law. Her scholarship focuses on the intersection of antitrust, data privacy, and intellectual property law, with particular emphasis on the application of legal theory to new technology. Professor Douglas teaches New Technology Regulation, Patents, and Contracts.
Thom Lambert Wall Chair in Corporate Law and Governance and Professor of Law
University of Missouri School of Law
Professor Lambert’s scholarship focuses on antitrust, corporate and regulatory matters. He is the author of How to Regulate: A Guide for Policymakers (Cambridge Univ. Press 2017) and co-author of Antitrust Law: Interpretation and Implementation 95th ed., Foundation Press, 2013). He has also authored or co-authored numerous book chapters and more than 20 journal articles in publications such as the Antitrust Bulletin, the Boston College Law Review, the Minnesota Law Review, the Texas Law Review and the Yale Journal on Regulation. He blogs regularly at Truth on the Market, a site focused on academic commentary on antitrust, business and economic legal issues.
John M. Yun, Moderator Associate Professor of Law George Mason University Antonin Scalia Law School
John M. Yun is an Associate Professor of Law and an economist who specializes in research at the nexus of antitrust, intellectual property rights, data, and privacy. More broadly, he conducts scholarship in the fields of law & economics, industrial organization, and law & technology— especially as it relates to network effects, multisided platforms, and digital markets. He regularly teaches courses in antitrust, law & economics, and intellectual property.
Garrett A. Johnson, Assistant Professor of Marketing at Boston University Questrom School of Business, and Nico Neumann, Assistant Professor and Fellow, Centre for Business Analytics at the University of Melbourne Business School, are working on a paper titled “The advent of privacy-centric digital advertising: Tracing privacy-enhancing technology adoption.” The paper draft may be read here.
Please see below for a video of Professor Johnson explaining their work.
Earlier this week, the Law & Economics Center‘s Program on Economics & Privacy (PEP), along with the Marion B. Brechner First Amendment Project, filed a comment in response to the Federal Trade Commission’s (FTC) Notice of Proposed Rulemaking to the Children’s Online Privacy Protection Rule.
The comment focuses on those parts of the proposal that are most likely to impact operators’ incentives to provide online services for children: limitations on engagement; data minimization; and duplicative consent requirements. Together, these proposed modifications to the COPPA rule are likely to reduce the quantity and quality of online services for children by directly chilling operators’ incentives to improve their products and by reducing revenue streams needed to produce online services. The comment concludes that for regulatory intervention of this scale, the FTC must conduct a rigorous cost-benefit analysis that compares the reduction in consumer surplus from losses in online services against any benefits in mental and physical health to children, which it simply has failed to do. The comment also points out the legal frailty of these proposals. First, while there may be legitimate reasons to be concerned about children spending too much time on screens, Congress did not design COPPA to address this concern but left that in the hands of parents. Modifications to the COPPA rule adopted to address these concerns go beyond congressional authorization as found in the COPPA statute. Second, restrictions that reduce children’s ability to receive online content and to communicate online violate the First Amendment unless they are narrowly tailored to address an important government interest. Given the lack of empirical evidence the Commission has mustered, the comment concludes the FTC will have serious difficulty convincing a court that encouraging “engagement” (i.e., more speech) is categorically harmful, and the proposed rule modifications that would interfere with engagement will be struck down for failure to identify a government interest.
The Program on Economics & Privacy (PEP), part of the Law & Economics Center at George Mason University Antonin Scalia Law School, has accepted proposals for large-scale empirical research on various facets of the economics of privacy.
James Cooper
Thom Lambert