ADventures in Law

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On Jan. 3, the Federal Trade Commission (FTC) announced a <a href="https://www.ftc.gov/news-events/news/press-releases/2025/01/ftc-order-requires-online-marketer-pay-1-million-deceptive-claims-its-ai-product-could-make-websites">settlement</a> with software provider accessiBe. At first, accessiBe seems to be a simple, routine FTC case following the traditional formula: Advertising + False Promises = FTC Action. However, at second glance, accessiBe can provide a much-needed window into the direction of the next FTC administration.

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 First and foremost, the case accessiBe offered an artificial intelligence (AI)-powered tool – accessWidget – that the company claimed could make any website compliant with the Web Content Accessibility Guidelines (WCAG) for people with disabilities. accessiBe made the claims on its website, on social media and in articles on third-party websites formatted to look like impartial and objective reviews. According to the complaint, accessWidget did not make all users’ websites WCAG-compliant and the claims were thereby false, misleading, or unsubstantiated, in violation of the FTC Act. Under the proposed order, accessiBe would be prohibited from engaging in the allegedly illegal conduct and be required to pay the FTC $1 million for consumer refunds.

The unanimous vote to file the complaint and order could provide a window into the incoming FTC administration’s approach to AI. Andrew Ferguson, FTC chair for the new administration, has made it clear in the past his opposition to the overregulation of AI. Earlier this year, in his <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-rytr-statement.pdf" target="_blank" rel="noreferrer noopener">dissent</a> to the FTC’s issuance of a complaint against Rytr (an AI-powered writing tool), Ferguson wrote:

[T]he Commission’s aggressive move into AI regulation is premature . . . . Neither [AI’s] naysayers nor its cheerleaders really understand its potential, or whether it represents substantial progress toward “artificial general intelligence” (AGI)—machine intelligence matching both the breadth and power of the human mind, the holy grail of AI research. That ignorance is not a reason to plunge headlong with aggressive regulation. It is a reason to stay our hand.

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Ferguson’s concern over the FTC’s overregulation of AI has stayed constant throughout his tenure as a commissioner – most recently emerging in his <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-statement-social-media-6b.pdf" target="_blank" rel="noreferrer noopener">concurrence/dissent</a> to the FTC’s Social Media and Video Streaming Services Report. Ferguson wrote, “For now, we should limit ourselves to enforcing existing laws against illegal conduct when it involves AI no differently than when it does not.”

However, as can be seen in accessiBe, Ferguson’s concern about overregulation does not stay his hand in all actions related to AI. Looking back through cases against companies offering an AI-powered product in which Ferguson joined the vote, he is comfortable going after companies that misrepresent what their product can do. As Ferguson noted in an earlier <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-donotpay-statement.pdf" target="_blank" rel="noreferrer noopener">concurrence</a> in an action against DoNotPay (an AI-powered “robot lawyer”), “Businesses that exploit media hype and consumer unfamiliarity with this new technology to cheat people out of their hard-earned money should expect a knock on the door from the Commission and other law-enforcement agencies.”

Ferguson’s vote in accessiBe is a strong indicator of his planned direction for the FTC. Likely, cases with novel or unexpected consumer protection theories will disappear under Ferguson’s leadership as the FTC returns to its role as “a cop on the beat.”

In the Matter of ‘accessiBe’ – Can This Case Provide a Window into the Direction of Andrew Ferguson’s FTC?