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������Ƶ’s Open Technology Institute and the Electronic Privacy Information Center (EPIC) filed comments urging the Federal Trade Commission (FTC) “to take a more comprehensive view of consumer harm in the data-driven economy.” The comments encourage the Commission to fulfill its consumer protection mandate by broadening both its quantitative and qualitative conceptions of the privacy injuries caused by unlawful data practices.

“Harms are frequently understood only in terms of immediate financial loss, overt deception, or risks consumers could reasonably avoid,” the comments note. “But modern data practices frequently produce consequences that are diffuse, delayed, or structural—such as loss of control over personal information, discrimination, reputational harms, or chilling effects on speech—and not captured in this limited conception.”

A “systematic under-recognition of privacy harms,” the comments explain, “in turn has allowed unfair and otherwise harmful data practices to flourish. The result of this—and of related regulatory and legislative failures—is the data protection crisis we now face today.”

OTI and EPIC note that “[t]he Commission’s efforts to quantify and fully understand the costs and benefits of data practices should turn on consequences (including consequences distributed across society) rather than remain confined to a narrow focus on labels or data categories.” Recognizing the full scope of privacy harms, the comments explain, would allow the FTC to “better align enforcement with the realities of modern data-driven markets, where many injuries are incremental, probabilistic, and distributed across time and populations.”

Expanding its conception of privacy harms and undertaking a “rigorous valuation of privacy loss,” the comments conclude, would “dramatically strengthen the Commission’s regulatory and enforcement efforts and help the FTC to deliver on its statutory obligation to protect consumers.”