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Comment to the Federal Trade Commission Re: Accountable Tech Petition for Rulemaking to Prohibit Tailored Advertising

This comment, coauthored by Prof. Jane Bambauer, addresses Accountable Tech’s Petition asking the Federal Trade Commission (FTC) to initiate a rulemaking to prohibit tailored advertising as an unfair method of competition. We make five main points that cast serious doubt on the wisdom and viability of such a rulemaking. First, as a threshold matter, there are reasons to doubt that Congress has given the FTC the power to promulgate rules under its authority. Second, the FTC can reach any use of tailored advertising that harms competition under its current authority. Third, given that a per se condemnation of tailored advertising would represent such a monumental departure from Sherman Act precedent, there are serious doubts that such an interpretation of the Commission’s Unfair Methods of Competition power would withstand judicial scrutiny under Chevron. Fourth, tailored advertising provides consumer benefits in terms of access to free content and services that exceed the costs in lost privacy. Finally, any rule that would limit tailored advertising will have to pass First Amendment scrutiny.

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