Rethinking FTC Order Duration: Kelley Drye Comment on X Corp.’s Petition

Kelley Drye submitted a comment this week in response to the Federal Trade Commission’s request for public input on X Corp.’s petition to reopen and set aside or modify the Commission’s 2022 Decision and Order over the company’s alleged use of account security data for targeted advertising. In its filing, the firm explains that X’s petition, while grounded in the specific facts of its case, raises broader concerns about the FTC’s longstanding approach to order duration, including the Commission’s default practice of imposing 20-year administrative orders and perpetual federal court orders. The comment notes that this framework has not been meaningfully revisited in decades, despite significant changes in markets, compliance practices, and technology.

The comment highlights how modern FTC orders can impose substantial and enduring compliance burdens that extend well beyond their remedial purpose. These obligations often require companies to maintain extensive internal governance structures, third-party audits, and detailed reporting systems long after they have demonstrated compliance. In addition, the comment observes that the FTC’s approach to order duration is increasingly out of step with other federal agencies, such as the Federal Communications Commission (FCC) and the Consumer Financial Protection Bureau (CFPB), which typically impose shorter, more tailored order terms. Lengthy orders also risk locking companies into outdated compliance frameworks that may hinder innovation in rapidly evolving areas. The comment further notes that consent orders may divert resources away from emerging technologies, including artificial intelligence, toward ongoing compliance efforts.

In light of these concerns, the comment encourages the Commission to adopt a more flexible and modern approach to order duration, including a default ten-year limit with tailored, provision-specific sunset periods where appropriate. You can read the full comment to the FTC here.

Summer Associate Bariela Capollari contributed to this post.