FTC To Reexamine Consumer Harm In A Data-Driven Economy

Today, the Federal Trade Commission announced that, on February 26, it will host a workshop focused on a deceptively simple question: how should consumer injuries and benefits be evaluated in an economy increasingly built on data?

The workshop, titled "Measuring Injuries and Benefits in the Data-Driven Economy," reflects an issue the FTC has been grappling with for years. Data fuels advertising, personalization, and innovation, but it also creates risks that don't always fit neatly into traditional consumer protection frameworks. Unlike classic fraud cases, data-related harms are often intangible, indirect, or cumulative, making them harder to define and even harder to measure.

That challenge is magnified by the fact that the United States still lacks a comprehensive federal privacy statute. Instead, companies operate under a growing patchwork of state privacy laws, sector-specific federal rules, and FTC enforcement grounded largely in deception and unfairness theories.

The Agenda: Hard Questions, Few Easy Answers

The FTC plans to explore issues it routinely confronts in enforcement and policy discussions, including:

• What constitutes a cognizable data-related injury, particularly when harm is non-economic or speculative;
• How to account for consumer benefits associated with data collection and use;
• The real-world impact of data breaches on consumers;
• Whether consumers meaningfully understand or control data-sharing choices; and
• The costs and benefits of behavioral and contextual advertising, which underpin many digital business models.

These are not new questions—but they remain largely unresolved.

Why This Matters

In the absence of a general federal privacy law, the FTC continues to play an outsized role in shaping data practices through enforcement actions and guidance. To bring an unfairness case under Section 5 of the FTC Act, the agency must show "substantial injury," a standard that is straightforward when money is lost—but far murkier when the alleged harm involves personal data.

This workshop appears aimed at refining how the FTC thinks about that problem. For businesses, particularly those navigating multiple state privacy regimes while relying on data-driven advertising or analytics, the agency's evolving views on injury and benefit matter. How the FTC frames these concepts influences enforcement priorities, litigation risk, and potentially the contours of future rulemaking.

At minimum, the workshop signals continued scrutiny of data practices in a regulatory environment that remains fragmented and unsettled.

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