Class actions against online platforms alleging improper data collection and sharing practices have increased dramatically in recent years. In 2022, the Federal Trade Commission solicited public comment on governing these practices, which it
termed “commercial surveillance,” through rulemaking. This Comment highlights the rise of private commercial surveillance and how both regulation and litigation have been employed to address ensuing harms. This Comment then discusses procedural barriers to these class actions, particularly Rule 23(b)(3)’s predominance requirement and Article III standing, and how some courts have relied on the U.S. Supreme Court’s decisions in Comcast v. Behrend and TransUnion v. Ramirez to heighten those barriers. Finally, this Comment makes several substantive recommendations for a federal privacy law that might overcome these procedural barriers, give effect to a private right of action, and complement regulatory authority.
