As FTC Chair Andrew Ferguson establishes his enforcement priorities, his positions on data categorization and surveillance pricing reveal a consistent philosophy that balances privacy protection with innovation. This is the third post in our series on what to expect from the FTC under Ferguson as chair.

Our previous posts examined Ferguson’s broad regulatory philosophy of “staying in our lane” and his priority enforcement areas in children’s privacy and location data. This post explores Ferguson’s approach to emerging privacy issues that don’t fit neatly into established legal frameworks.

Skepticism of “Sensitive Categories” Designation

Ferguson has expressed significant skepticism about the FTC designating certain categories of data as inherently “sensitive” without clear statutory basis. In his September 2024 statement on the Social Media and Video Streaming Services Report, Ferguson criticized this approach:

“I am skeptical that this is the kind of injury the law should try to address… I doubt it could. Any such line would tend toward arbitrariness and is not a stable system on which to decide whether advertisements are illegal.”

Ferguson’s critique reflects his broader concern that creating subjective lists of “sensitive” data categories raises several problems:

1. Arbitrary line-drawing – Determining which categories qualify as “sensitive” is inherently subjective and potentially politicized.
2. Lack of statutory basis – Section 5 does not provide clear guidance on which categories of data should receive special protection.
3. Inconsistent application – When regulators decide which categories deserve protection, the resulting lists may reflect the decision-makers’ preferences rather than objective criteria.

Ferguson’s December 2024 concurrence in the Mobilewalla case provides the clearest view of his position on sensitive data categorization, where he wrote: “The FTC Act does not limit how someone who lawfully acquired those data might choose to analyze those data, or the conclusions that one might draw from them.” This reveals a fundamental distinction in his approach: While he believes the initial collection of sensitive data without consent may violate Section 5, he is skeptical that the FTC can regulate how lawfully obtained data is subsequently categorized or analyzed.

Ferguson’s analogy to private investigators is particularly telling: Just as investigators may legally observe someone entering a church and conclude they practice that religion, Ferguson believes that drawing conclusions from lawfully collected data is not, in itself, a Section 5 violation.

Surveillance Pricing: Fact-Finding Over Speculation

Ferguson has demonstrated a measured approach to emerging data practices like surveillance pricing — the use of consumer data to set personalized prices. In July 2024, he supported the FTC’s 6(b) study into these practices, explaining:

“One of the most important duties with which Congress has entrusted us is studying markets and industries and reporting to the public and Congress what we learn… These studies may inform future Commission enforcement actions, but they need not.”

His statement emphasized the importance of thorough fact-finding before developing policy positions, noting:

“Congress and the American people should be made aware of whether and how consumers’ private data may be used to affect their pocketbooks.”

However, in January 2025, Ferguson joined Commissioner Melissa Holyoak in dissenting from the release of preliminary “research summaries” on surveillance pricing. His dissent criticized the rushed release of early findings:

“Issuing these research summaries degrades the Commission’s Section 6(b) process. The Commission should not be releasing staff’s early impressions that ‘can be outdated with new information’ because the fact gathering process on the very issues being presented to the public is still underway.”

This suggests a commitment by Ferguson to thorough investigation of privacy issues before regulation, particularly with emerging practices that implicate consumer data.

Balancing Evidence and Action

Ferguson’s approach to both sensitive data categories and surveillance pricing illustrates his broader privacy philosophy:

1. Demand robust evidence – Before taking regulatory action on privacy practices, Ferguson wants complete factual records that demonstrate actual harm.
2. Favor established laws over novel theories – His skepticism of “sensitive categories” shows preference for established legal frameworks rather than expanding statutory interpretations.
3. Emphasize procedural integrity – His objection to preliminary research summaries reveals concern with fair, thorough processes before reaching conclusions about data practices.

Ferguson appears to maintain a genuine openness to evidence that might show consumer benefits from practices such as data categorization or personalized pricing. His insistence on completing thorough market studies reflects not just procedural formalism but a substantive commitment to evidence-based regulation that considers both potential harms and benefits.

What This Means for Businesses

Based on Ferguson’s positions, here are some considerations for businesses:

For Data Categorization:

• Focus on consent mechanisms for data collection rather than worrying about how lawfully collected data is analyzed.
• Document legitimate business purposes for data analysis.
• Keep watch for potential future legislation that might specifically designate certain data categories for special protection.
• Distinguish clearly between initial data collection practices (which face greater scrutiny) and subsequent analysis of lawfully collected data (which faces less scrutiny).

For Surveillance Pricing and Similar Practices:

• Expect continued scrutiny of personalized pricing practices, but through careful study rather than immediate regulation.
• Maintain transparency about how customer data influences pricing.
• Document how pricing algorithms use personal data.
• Consider implementing clear opt-out mechanisms for data-based pricing.
• Document instances where personalized pricing benefits consumers through lower prices or increased access, as Ferguson’s evidence-based approach may be receptive to such benefits.

Evolution Rather Than Revolution

Ferguson’s approach suggests the FTC under his leadership will maintain strong privacy enforcement but with a focus on clear statutory violations rather than expanding interpretations of unfairness. For data categorization and surveillance pricing, this means:

1. Continued fact-finding – The commission will likely invest in thorough market studies before developing policy positions.
2. Focus on deception over unfairness – Companies making false or misleading claims about data practices will face scrutiny, while novel “unfairness” theories will receive more skepticism.
3. Emphasis on consent and transparency – Proper notice, consent, and transparency will remain central to the FTC’s privacy enforcement.

This approach represents evolution rather than revolution in the commission’s privacy work, with a measured path that balances consumer protection with business certainty and technological innovation.

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