• by Wendy Davis , Staff Writer @wendyndavis, December 11, 2024

President-elect Donald Trump on Tuesday evening tapped Federal Trade Commission member Andrew Ferguson, a former Utah Solicitor General who once clerked for Supreme Court Justice Clarence Thomas, to replace Lina Khan as head of the agency.

Ferguson, nominated to the agency in July 2023 by President Joe Biden, is considered business-friendly and has argued that ad targeting can be beneficial.

But he has also sharply criticized companies' data-collection practices, and strongly suggested that policymakers move to curb businesses' ability to amass the data that fuels personalized ads.

“It is alarming how much private, revealing information SMVSSs have been collecting, aggregating, disclosing, and indefinitely storing,” he wrote in September, referring to social media and video streaming services.

His statement accompanied an FTC staff report that criticized those services' privacy practices, which asserted that targeted advertising “can pose serious privacy risks to consumers,” and called for new laws.

“Companies often aggregate and anonymize collected data, but the information can often be reassembled to identify the user with trivial effort,” Ferguson wrote in a statement that partially concurred and partially dissented from the report.

He added that the “massive collection, repackaging, sharing, and retention of our private and intimate details puts Americans at great risk.”

“Bad actors can buy or steal the data and use them to target Americans for all sorts of crimes and scams,” he wrote. “Others, including foreign governments who routinely purchase Americans’ information, can use it to damage the reputations of Americans by releasing, or threatening to release, their most private details, like their browsing histories, sexual interests, private political views, and so forth.”

In that same statement, he defended targeted advertising, writing that it could benefit “consumers and producers.”

“Targeted advertisements ... are directed to the groups of consumers most likely to be interested in the advertised product in the first place,” he wrote. “Targeting therefore increases the value of advertising space for online service operators and can lower costs for advertisers by reducing wasted impressions.”

Despite that endorsement, he suggested there should be curbs on data collection.

“The correct regulatory focus is ... the largely unregulated collection, aggregation, sale, and retention of consumers’ data that makes the targeted advertising possible,” he wrote. “Policymakers should focus on protecting consumer data privacy on the front end rather than on implementing the sort of amorphous, backend advertising regulations that the report recommends.”

Ferguson has also criticized large tech companies for supposedly suppressing right-wing speech.

On Tuesday night, he said in a post on X that the FTC “will end Big Tech’s vendetta against competition and free speech.”

Yet any attempt by the FTC to influence tech companies' content-moderation practices would surely run into a First Amendment hurdle, as happened when Texas and Florida attempted to regulate social media platforms' editorial decisions.

As recently as July, a majority of the Supreme Court said social media companies have a constitutional right to decide what to publish.

The 1st Amendment “does not go on leave when social media are involved,” Justice Elena Kagan wrote in an opinion issued this summer.

“This Court has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression -- to 'un-bias' what it thinks biased, rather than to leave such judgments to speakers and their audiences,” she wrote. “That principle works for social-media platforms as it does for others.”