Podcast Title: The Monopoly Report
Host: Alan Chapell
Guest: Samuel Levine
Episode: 37: Rescuing Privacy and Consumer Protection
Release Date: July 9, 2025

Introduction

In Episode 37 of The Monopoly Report, host Alan Chapell engages in an insightful conversation with Samuel Levine, the former Director of the FTC’s Bureau of Consumer Protection. The discussion delves into the evolution of the Federal Trade Commission's (FTC) approach to privacy and consumer protection, particularly highlighting the pivotal shift from the Reagan-era deregulation to a more assertive stance under Lina Khan's leadership. They explore the challenges and successes in enforcing consumer protection laws, the interplay between antitrust and privacy regulations, and the future of privacy legislation in the digital age.

Samuel Levine’s Role and the FTC’s Mission

Background and Responsibilities
Samuel Levine served as the Director of the FTC's Bureau of Consumer Protection, overseeing a broad spectrum of enforcement, rulemaking, and policy areas, including privacy, data security, digital advertising, and consumer reporting.

[02:43] Samuel Levine: "If I had to describe that at one mission, it would be making sure markets are fair for consumers, consumers and fair for businesses."

FTC’s Dual Mission
While commonly perceived as having two primary missions—antitrust enforcement and consumer protection—Levine emphasizes that these are intrinsically linked under the broader goal of ensuring fair markets.

Historical Shift: From Reagan to Lina Khan

Reagan-Era Deregulation
Levine traces the FTC’s historical shift back to the early 1980s during the Reagan administration, a period marked by significant deregulation efforts. The FTC reduced its focus on unfairness, concentrating predominantly on deceptive practices.

[05:18] Samuel Levine: "You can trace that history very directly to the Reagan Years where ... they stopped bringing unfairness cases."

Impact on Privacy and Consumer Protection
This shift laid the groundwork for a privacy regime where consumer protection was limited to ensuring accurate disclosures, neglecting broader unfair practices that could harm consumers even with full disclosure.

[06:18] Alan Chappelle: "The abandonment of unfairness in the early 80s and the real focus on just tell consumers what you're going to do. Doesn't matter what you're going to do, so long as you tell them that was a problem."

FTC’s Renewed Focus on Unfairness Under Lina Khan

Reinvigorating Consumer Protection
Under Lina Khan’s leadership, the FTC began to tackle the previously neglected aspect of unfairness, addressing practices that harm consumers beyond mere deception.

[04:55] Samuel Levine: "We have authority to challenge those practices if it's causing harm. And that's been one of the key focuses of our work over the last couple years."

Notable Cases and Enforcement
Levine highlights significant cases, such as the lawsuit against data broker Kochava, where the FTC successfully argued that invasion of privacy constitutes an actionable injury under the FTC Act, even without financial loss.

[14:42] Samuel Levine: "The judge rejected them. This was in Idaho, and the court said, actually invasion of privacy alone can be an actionable injury under the FTC Act."

Antitrust vs. Consumer Protection: Shifting Priorities

Durability of Antitrust Changes
Chapell observes that antitrust reforms, influenced by figures like Lina Khan, have gained more traction and durability compared to privacy enforcement changes, which appear more vulnerable under shifting political landscapes.

[14:42] Alan Chappelle: "It seems like the antitrust changes have at least thus far proved to be a little bit more durable than the changes to privacy enforcement."

Political Dynamics and Consumer Protection
Levine discusses the challenges consumer protection faces under conservative administrations, which may prioritize deregulation and view robust consumer protection as antagonistic to business interests.

[15:06] Samuel Levine: "We have yet to see what the privacy work will look like. ... Consumer protection has to be part of that equation."

Regulating Privacy: Scale and Scope

Differentiating Between Large and Small Firms
The conversation addresses the complexity of creating privacy regulations that appropriately distinguish between the data processing capabilities of large tech giants like Google and smaller ad tech companies.

[22:07] Samuel Levine: "There's not a direct correlation always between the size of a company and how much data it processes."

Systemic Risk in Privacy Regulation
Levine draws parallels with financial regulation, suggesting that privacy laws should consider systemic importance, imposing stricter oversight on companies whose data practices pose significant risks.

[22:35] Samuel Levine: "We need to identify your benchmark there merit heightened scrutiny... analogous in privacy law."

Self-Regulation vs. Federal Privacy Legislation

Limitations of Self-Regulation
Levine critiques self-regulation in the privacy space, citing its poor track record and the necessity of a strong enforcement backbone to make it effective.

[26:58] Samuel Levine: "Self regulation can be a complement. ... it can not be a substitute for enforcement."

Need for Comprehensive Federal Law
Both host and guest agree on the insufficiency of self-regulation and the urgent need for robust federal privacy legislation to establish clear, enforceable standards.

[25:30] Samuel Levine: "If privacy regulation just entrenches the dominance of incumbents... that is not the kind of privacy protection we want to see."

The Do Not Track Syndrome and Its Implications

Challenges with Do Not Track (DNT)
Chapell and Levine discuss the shortcomings of the Do Not Track initiative, highlighting how it was co-opted by large tech companies to maintain their dominance while offering superficial privacy improvements.

[33:43] Alan Chapell: "They were very, very much geared towards larger entities and first parties... designed to put those companies out of business and enable big tech to dominate."

FTC’s Response and Future Directions
Levine explains the FTC’s attempts to address first-party data usage and the complexities involved in regulating it effectively.

[38:27] Samuel Levine: "Companies like Goodrx and Better Help ... cannot share sensitive health data for purposes of targeting ads without affirmative express consent."

Notice and Choice: Critique and Alternatives

Fundamental Flaws of Notice and Choice
Levine critiques the notice and choice paradigm, arguing that it places unrealistic burdens on consumers to understand complex privacy policies and failing to offer meaningful protection.

[43:37] Samuel Levine: "No human has enough time to read every privacy policy for every digital service they use... It’s a profound failure."

Potential for Hybrid Regulatory Models
They explore the possibility of hybrid models that incorporate baseline protections with mechanisms for consumer consent, akin to how food labeling operates alongside safety regulations.

[50:18] Samuel Levine: "Baseline protections ... and then for particular uses, if there's really benefit, ... allow some consent mechanism."

Conclusion and Future Outlook

Alan Chapell and Samuel Levine conclude by emphasizing the necessity for comprehensive federal privacy legislation to complement enforcement efforts. They advocate for a balanced approach that protects consumers while allowing innovation, urging policymakers to learn from past regulatory successes and failures.

[53:04] Alan Chapell: "Samuel Levine, this has been an absolutely wonderful conversation... Subscribe to the show@monopolyreportpod.com... And thanks for listening."

Key Takeaways

• Historical Context Matters: The FTC’s approach to consumer protection and privacy has been significantly shaped by historical regulatory philosophies, particularly those from the Reagan era.

• Unfairness as a Priority: Renewed focus on unfair practices beyond deception is essential for effective consumer protection in the digital age.

• Regulatory Balance: Effective privacy regulation requires distinguishing between different scales of data processing and addressing systemic risks without stifling innovation.

• Beyond Self-Regulation: Self-regulation alone is insufficient; robust federal legislation with strong enforcement mechanisms is necessary to protect consumer privacy effectively.

• Rethinking Notice and Choice: The traditional notice and choice framework is inadequate for modern privacy challenges, necessitating new models that provide baseline protections and meaningful consumer consent.

Notable Quotes:

• Samuel Levine [05:18]: "There was a real focus on, let's just make sure consumers have the right information and otherwise stay out of the way."

• Samuel Levine [14:42]: "Invasion of privacy alone can be an actionable injury under the FTC Act."

• Samuel Levine [22:35]: "It's quite different when United House Right has a massive data breach and it shuts down much of our healthcare system."

• Samuel Levine [43:37]: "Consumers should read privacy policies and if they don't like it, they should not use that service... Maybe that made sense 25 years ago, I don't think so."

This comprehensive summary captures the essence of the episode, outlining the key discussions on the FTC's evolving role in consumer protection and privacy, the impact of historical regulatory shifts, and the pressing need for effective privacy legislation.