• by Wendy Davis , Staff Writer @wendyndavis, April 15, 2022

For more than two decades, online companies have relied on privacy policies to notify consumers about data collection and obtain their consent.

That approach may no longer make sense, Federal Trade Commission Chair Lina Khan suggested this week.

“I am concerned that present market realities may render the 'notice and consent' paradigm outdated and insufficient,” Khan said at a conference of the International Association of Privacy Professionals.

“Many have noted the ways that this framework seems to fall short, given both the overwhelming nature of privacy policies -- and the fact that they may very well be beside the point,” she continued. “When faced with technologies that are increasingly critical for navigating modern life, users often lack a real set of alternatives and cannot reasonably forego using these tools.”

Instead, Khan suggested, officials should consider “substantive” rules that would prohibit companies from collecting certain kinds of data. She didn't elaborate on what type of data collection could potentially be outlawed.

The FTC head repeated some of those sentiments Wednesday on Twitter.

“Navigating daily life increasingly requires using digital tools that surveil, categorize, and monetize our personal data. At @PrivacyPros I identified some ways we may need to update our approach to law enforcement in light of these realities,” she tweeted.

“We're considering whether market-wide rules could better curb unlawful data practices,” she added on Twitter. “I also believe we should consider whether 'notice and consent' is insufficient.

In her speech earlier this week, she was mostly critical of current practices, stating that the “endless tracking and vacuuming up of users’ data” could in some cases benefit users, but could also enable harmful practices.

“For example, firms can target scams and deceptive ads to consumers who are most susceptible to being lured by them,” she said.

“Collecting and sharing data on people's physical movements, phone use, and online activities, meanwhile, can put people in serious danger, allowing stalkers to track them in real time,” she added.

Her comments come several months after the FTC said in a regulatory filing it was considering issuing rules in order to “curb lax security practices, limit privacy abuses, and ensure that algorithmic decision-making does not result in unlawful discrimination.”