FTC Aims to Foster AI Innovation But Won't Hold Back Enforcement, Says Holyoak
CHICAGO -- AI won't get immunity from FTC enforcement, Commissioner Melissa Holyoak said Tuesday in a keynote at the Association of National Advertisers (ANA) ad law conference. Also, the Republican said the commission shouldn’t prejudge advertising practices that might benefit consumers or competition.
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President Donald Trump’s AI Action plan “envisions [the] acceleration of AI innovation," and calls out the FTC "to make sure that we do not burden that,” noted Holyoak. Trump released the plan in July (see 2507230058).
While the FTC is committed to fostering innovation, “that does not mean we're not going to break enforcement actions where AI is involved, and we will,” said Holyoak. “We have a long history of protecting consumers and that continues, even if there's AI being used.”
Meanwhile, ANA CEO Bob Liodice said during opening remarks his association continues to seek a national privacy law, though without success. “We've been working to get a national privacy law for years and years and years.” However, over the course of many proposals, maybe now “we have the bucket of principles that will allow us to create national privacy legislation."
Despite the lack of a federal privacy law, the FTC continues pursuing “robust enforcement of COPPA” to protect kids, said Holyoak. And the agency is “gearing up for enforcement” of the Take It Down Act when it becomes effective May 2026, she said. In May, Trump signed the law, which prohibits online publication of nonconsensual intimate imagery and requires platforms to remove illegal content within 48 hours of notice from a victim (see 2505190057).
However, Holyoak believes the commission “should stay away from nefarious terms like dark patterns or surveillance marketing,” she said. “We need to do that because we are law enforcement” and “should not be prejudging investigations.” The FTC should be looking if there is a “substantial injury” that isn’t “outweighed by countervailing benefits to customers or competition.”
“Behaviorally targeted advertising is unquestionably more data intensive,” said Holyoak, but it can benefit consumers, small businesses and new entrants. “It creates really powerful incentives to collect, use [and] retain data. On the other hand, many consumers … actually really enjoy the free internet, which is largely powered by these targeted ads. And behaviorally targeted ads … often increase sales significantly more than contextual advertising.”
“There is no comprehensive federal privacy law that addresses these issues,” though there are many state laws, noted Holyoak. “Without a comprehensive federal privacy law, the FTC” enforces sector-specific laws like COPPA and the Fair Credit Reporting Act, plus it reviews specific cases under its Section 5 authority. “This is so very dependent on the facts,” she said. “What data is being collected? From whom? How is it used? What is being told to the consumer about its practices?”
Federal statute governing the FTC doesn’t define sensitive data like state laws do, the commissioner added. So, to determine if something is sensitive, “we have to look at the specific kind of information and … whether disclosure or sale of that could likely cause substantial injury.” Holyoak said that she only supports enforcement actions where a strong connection with substantial injury is made.
Holyoak will soon leave the FTC. The White House said Thursday that President Donald Trump will name Ryan Baasch to replace the commissioner (see 2510300033). Holyoak is expected to be nominated to serve as U.S. attorney for Utah.