GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2024

Status

Accepted

Abstract

On paper, the Federal Trade Commission’s consumer protection authority seems straightforward: the agency is empowered to investigate and prevent unfair or deceptive acts or practices. This flexible and capacious authority, coupled with the agency’s jurisdiction over the entire economy, has allowed the FTC to respond to privacy challenges both online and offline. The contemporary question is whether the FTC can draw on this same authority to curtail the data-driven harms of commercial surveillance or emerging technologies like artificial intelligence.

This Essay contends that the legal answer is yes and argues that the key determinants of whether an agency like the Federal Trade Commission will be able to confront emerging digital technologies are social, institutional, and political. Specifically, it proposes that the FTC’s privacy enforcement occurs within an “Overton Window of Enforcement Possibility.” Picture the FTC Act’s legal standards as setting forth a range of lawful enforcement behavior for the agency—a range within which further choices must be made. Within this lawful space, just as a politician’s “Overton Window of Political Possibility” will not include every possible policy option, the agency’s Window will not include every possible enforcement option. Rather, the Window for privacy enforcement—the space within which the agency might operate—will be sharply informed by four critical forces: social norms; institutional norms within the agency; the courts; and Congress.

This approach highlights how the agency’s enforcement actions do not occur in a rigidly fixed domain; rather, they unfold within a dynamic space that can change over time, subject to both forces inside the agency and external to it. What’s more, understanding enforcement as a process in this way surfaces an often-overlooked point for federal legislation that seeks to endow new or existing agencies with additional regulatory authority: without a sufficiently large Window within which the agency can operate, all the theoretical grants of power in the world will have little impact on the ground. That’s a sobering lesson. But it’s empowering, too. For one, it suggests strategies for administrative officials who seek to exercise their enforcement authority, such as attempting to ground more progressive or novel actions in topics with thick social consensus. For another, it pushes policymakers seeking to empower agencies to consider institutional design; to account for the practical realities that an agency must confront, over time; and to think creatively about where there might be play in the joints.

GW Paper Series

2024-07

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