After Notice and Choice: Reinvigorating “Unfairness” to Rein In Data Abuses

The Federal Trade Commission (FTC) has long served as America’s default privacy enforcer. Yet for much of its history, the agency relied on self-regulation through a “notice and choice” framework that left the public vulnerable in an era of rampant data collection and digital surveillance. Businesses overwhelmed users with dense privacy notices while amassing and exploiting vast troves of personal data. The agency’s historical approach, rooted in outdated assumptions about self-correcting markets and an ideologically cramped view of the FTC’s authorities and mandate, helped usher in a digital economy where data abuses became routine. During the Biden Administration, the FTC charted a new course, rejecting disclosure- based frameworks in favor of substantive protections. Through major enforcement actions, new rulemaking initiatives, and internal capacity-building, the agency advanced significant measures to curb harmful data practices. These efforts included restricting excessive collection of data, establishing bright-line limits on the dissemination of sensitive data, targeting manipulative “dark patterns,” expanding protections for children and teens, and crafting remedies to deter illegal data practices. By addressing upstream drivers of data abuses rather than just responding to downstream harms, the FTC spurred changes in how businesses collect, disseminate, and use Americans’ personal data, while demonstrating that the agency’s existing tools — especially its authority to prohibit “unfair” practices—can be deployed effectively to rein in digital abuses. This Feature examines the paradigm shift underlying the FTC’s new approach to consumer protection in the digital age. First, it situates this pivot by tracing the history, descriptive assumptions, and ideological tenets that shaped the agency’s prior “notice and choice” framework. Second, it maps out the enforcement principles that animated the FTC’s recent shift, examines the agency’s revival of its “unfairness” authority, and explains how recent agency actions across multiple domains illustrate this new approach. While the change in administration brings uncertainty about the agency’s direction, the FTC’s recent work has laid out a durable blueprint for substantive consumer protection in the digital age. Several of the reforms and programmatic advances have garnered rare bipartisan support at the FTC, in Congress, and in the states, building momentum toward a lasting shift away from disclosure-based regimes.