Ohlhausen Says FTC 'Working Well' Despite 3 Vacancies, Focuses on Commission Priorities

Acting FTC Chairman Maureen Ohlhausen said the commission is "working well" despite three vacancies, but didn't provide any insight into whom President Donald Trump would nominate to those seats or when, or whether she will permanently head the commission. She spoke Wednesday to a few reporters about several topics, including FTC's common-carrier exemption, after a U.S. Chamber of Commerce event that featured new reports on international cross-border data flows and attributes of effective data protection authorities (DPAs).

Asked after the event about potential nominations, Ohlhausen jokingly replied, "You're the reporters. You tell me. What are you hearing?" The FTC's quorum rules allow it to act with two commissioners, she said, and much of the work it does is "unanimous and bipartisan." She said she will focus on fraud cases and those that cause "substantial harm," and thought Commissioner Terrell McSweeny "would certainly be supportive of those kinds of cases. The commission is meant to function with five and so I think what we want to strive for is ... [t]o] be back to our full strength. But, obviously, the administration is very busy. I think the FTC is working well and so I imagine [the administration will] get to us at some point."

McSweeny recently told us she didn't foresee any problems in working with the acting chairman (see 1702010029). Several former staffers and experts said the agency should be able to effectively operate with two commissioners (see 1701130030). Ohlhausen sidestepped questions about whether she would be named permanent chairman of the commission. She said she appreciated support from several people, including former FTC Commissioner Orson Swindle, who have urged the president to name her permanently to the position (see 1702150030). In a Tuesday opinion piece for The Hill, Swindle said Trump "will not find an experienced leader more capable of running" the commission than Ohlhausen, who worked as Swindle's attorney adviser during his tenure. "She knows the FTC as thoroughly as anyone -- a very necessary quality," he said in the piece. Politico and other news outlets have reported Trump is considering Utah Attorney General Sean Reyes as FTC chairman.

During the Chamber event, Ohlhausen said her priorities over the next couple of months will be to deepen the FTC's knowledge about the economics of privacy and substantial injury, which includes studying consumer preferences and the relationship between access to consumer data and innovation (see 1702170026, 1702020020 and 1701230043). "Unfortunately, under the previous administration, the FTC, on occasion, ventured onto less sure ground where consumer injury was not as well understood," she said. Ohlhausen also touted business and consumer education to help prevent harm and advanced international cooperation. Hunton & Williams privacy attorney Lisa Sotto presented the Chamber's report on effective DPA attributes and called the FTC an "exemplar" of such regulatory entities.

"It's very hard for a DPA ... not ensconced in the business world every day to keep up," said Sotto. "And to do that there has to be a constant dialogue with business and with privacy advocates so that the issues can be very much front of mind for a regulator." The more effective regulators, she said, treat the business or regulated community as partners rather than adversaries, seek input from stakeholders, act judiciously and fairly, promote transparency, coordinate with other DPAs and are informed about the business and technological changes.

Asked by Daniel Sepulveda, the former State Department U.S. coordinator for international communications and information policy, who was in the audience, about the FTC's role if congressional efforts to dismantle FCC broadband privacy rules succeed (see 1702160069), Ohlhausen said the FTC could step back and act in that space. But she said the "wrinkle" is with its fight with AT&T Mobility in the 9th U.S. Circuit Court of Appeals, which is considering an FTC request for the full court to hear its case (see 1611150032 and 1611080053). She said the commission supported, on a bipartisan basis, repeal of the common-carrier exemption to provide oversight over those companies.

The Chamber also released a report on the importance of cross-border data flows and how some nations are increasingly imposing data localization laws or other similar measures to keep people's data within a country's boundaries. Experts said such restrictions could hamper innovation like artificial intelligence, inhibit access to new services for local businesses and consumers and possibly data security.