**Jonathan:** Burning question for you. I'm not sure whether Republicans are sitting with the house, but assuming they run this thing wall to wall, White House, senate, house, what does that mean for privacy? What does it mean for the prospects of a federal law?
**Alysa:** It's a really good question. I was wondering that too because we've yet to have a compromised federal privacy legislation that can get through. And you've got preemption, you've got private right of action, which always are pain points, but there was a real need for bipartisan agreement. And there that doesn't go away, but who's on the board does matter. And so in the house, we no longer have Kathy McMorris Rogers. She was a big privacy proponent. We don't know who will be the head of the E and O committee, but we know, for example, the Chamber of Commerce and other industry groups really would want a a comprehensive federal privacy legislation. And so that's a pressure point that you could see some motivation. On the senate side, Ted Cruz is the ranking member now. So if he takes over leadership on that committee, Texas has a comprehensive privacy law, and you could see where that could be a motivator to make that a national standard. He would though still need to get it out of committee, which means you need Democrats to to support that to get out of committee. But I think it's really that jump ball on, do you want to get anything over the finish line, and what kind of compromises are you willing to make on both sides? And to date, it hasn't happened, but, again, the makeup is different. There's always a chance. And and early on, just as the states are rolling out privacy laws, you'd be forgiven for thinking that kind of the red states had diluted privacy laws. But, actually, when you look at Texas I don't really subscribe to that theory maybe because I've had to work with a lot of companies in responding to compliance with those laws. Texas adds more. It's a pretty robust comprehensive privacy law. And if you think about just what it does as opposed to focusing on what it doesn't, it does a lot. And that AG's office has hired, just from my own experience, I think that office has been a more active enforcer on their privacy law than at least they rival California in terms of just the volume of inquiries and investigation under that law that occurred so far. And then for preemption, California stays the way it is. Right? And still has to get through all these committees and That so we would always say before, when the Democrats control the house, there's no way how do you get preemption? California being so advanced in terms of what they've done, when you think of the chamber and others, a big the whole value of a federal privacy law is that there would be some type of preemption. And I don't think APRA, which was the last really big federal comprehensive I don't think we're seeing that model. But the question is, is there a form of preemption? Is it everything? Is it partial? What does it preserve? I think these are real hot issues to be determined.
**Jonathan:** What about where privacy hits AI and just the use of personal data AI models? And more broadly too, if you wanna give us some perspective on that. But look, where privacy hits it.
**Alysa:** What is So AI is its own category. And in just reading post election tea leaves, there is a pro business wanting innovation. And you think about just Elon Musk's role in Trump's election, and he has a lot of businesses that depend on AI. So I have a hard time seeing hard regulation on AI, but but it's not off the table because there's a lot of emphasis on content moderation. And that is something the Republicans have really talked about in censorship, and that's algorithmic decision making. It's recommender engines. And so I do think there's still going to be scrutiny on that. And at the end of the day, you're talking about personal information, how an algorithm is powered by that personal information, and what either decisions or supporting factors does it tee up. So that topic is not going away. It's just really how is it going to be regulated. I think we are not gonna see an FTC, for example, that is going to be dropping lots of bills because that tends not to be what a Republican run FTC does, but I can certainly see some emphasis on that. It's just where the emphasis within AI is, and personal information is just gonna get caught up in there.
**Jonathan:** Gotcha. And if we look at some of the like, I think the Twitter case where there was personal data used in AI models, The point there was that if it's public, we can use it. Right?
**Alysa:** I think it's more nuanced because in the modern day, you think of all the different state privacy laws and particularly the ones that have been amended. That definition of public, what is public, is not just without bounds. That is a very specific caveat full definition, and I don't think, it means what what really most think it means. It's gotta be tethered to something very specific, which is not how most people are getting. They may be getting data from upstream, from data brokers, and I think that's harder to prove that it really does meet the public test as defined by the laws. And I think at the end of the day too, are you gonna have a California approach and then an everywhere else approach? Are you gonna California and Washington? It's there there are a lot of decisions on what's gonna work best for companies.
**Jonathan:** Gotcha. And then talking about the FTC, Lina Kahn's gone anyway. Right? Because her term ends in September. She was gonna stay for a few months. So so let's talk about what's typical, and then let's talk about what might happen.
**Alysa:** Okay. It is typical for the chair when you have a change in administration to usually resign some point before the inauguration. And that's you look at history, that has largely been the case. I'm I'm gonna go back to Elon Musk. He was not a big fan of Lena Khan as nor was the chamber. JD Vance was, but I don't think that's enough to really have her remain there. And so the question is when she will resign or when there will be an appointment. It took a long time in the last in the last Trump administration to get all those appointments done, but there is a much more mobilized transition team from what I've read. And so I don't think it'll take us long. The question is who? My sense is whoever is selected is probably gonna be more because of the antitrust issues and getting deals made necessarily than the consumer protection bona fides, but we'll see.
**Jonathan:** Gotcha. So survivalist capitalism will still be a thing, you think, regardless of who's the chair?
**Alysa:** So I think that's dead. I think that rule I think the FTC's role on surveillance capitalism, I think that's dead. I don't think that that is going but how what is the FTC going to do when it comes to targeted advertising? I think that is an open question. I still see an emphasis on health. If we think about what the enforcements were under the FTC under the last term administration, you had the Visio case with personal information within a TV context. You had the Flow, the menstrual tracking mobile app. So it's not that privacy entirely goes away. I think they may have a different emphasis. I think it's a I would be doubtful that just online browsing is considered sensitive personal information. I think we get better clarity around that. But how much on the privacy front, I think, is a real good question.
**Jonathan:** Related to that, I've been reading a lot of professor Solove's pieces and his latest piece on Kafka and AI and privacy. The premise is basically this whole idea of notice and consent. It's a flawed model. There's no such thing as informed consent. He goes a little further and says, even when individuals have the power to control their own data, they always give it right back to brands. And he proposes some alternatives. And it's societal structure models. But the question for today is do you think notice and consent, if the Republicans have a chance to get a federal law, whatever it looks like, do you think they that concept stays as a foundation?
**Alysa:** I think that concept stays because, really, what is a I'm a very practical focused person. Like, what is a standard that works, that is not suppression of speech? And I think that's it's easy to throw out statements like that. I think it's a lot harder, particularly when you don't wanna tank the economy, and that is clearly not an objective. So I I think that stays. I think data minimization is still very much an active topic on, well, what does that mean and compatibility with consumer expectations and how those factors play into consent. I think there's much more of a burden now to be able to demonstrate that you really do have a legitimate reason to collect that information. It is compatible with consumer expectations. You're not engaging in dark patterns, which is deception. I think the model of notice and consent from ten years ago is out of date. But where we are today, I think it is more meaningful, and there are some things that are not gonna be appropriate for notice and consent, and they're having to know where the distinction is.
**Jonathan:** Thanks, Alyssa, as always.
