Expect Privacy, Competition Issues to Top FTC’s Agenda

After confirmation Thursday of five FTC commissioners, several issues are worth watching early in their tenures concerning privacy, competition and personnel (see 1804260041), stakeholders said the next day. Topping issues, according to industry attorneys and former officials: a determination of potential 2011 consent decree violations by Facebook (see 1804050058), handling continued antitrust complaints against Google, and retention of acting Competition Bureau Director Bruce Hoffman and acting General Counsel Alden Abbott. “It’s an important and interesting time for the FTC because they’ve been shorthanded so long, so it’s really good to see a full complement of commissioners,” said Bloom Strategic Counsel founder Seth Bloom. “These next few months are going to be important to see what they’re up to and what they take up as their priorities.”

Fletcher Heald broadcast lawyer Peter Tannenwald said to watch how jurisdictional dynamic plays out between the FTC and FCC. He said FCC Chairman Ajit Pai won’t be “chomping at the bit to be a tough regulator of internet practices,” but it’s difficult to predict where agencies will experience ambiguity on who takes the lead. Expect “howls by either internet service providers or public interest groups and users,” depending on where the agencies stand on jurisdiction, he said. Pai looks forward to the FCC and FTC working together on everything from promoting competition to protecting consumers. FCC Commissioner Mike O’Rielly said he’s ready to work “with each individual when our jurisdictions or views align.”

An FTC spokesman said acting Chairman Maureen Ohlhausen will remain as a commissioner until confirmed by the Senate as a judge on the U.S. Court of Federal Claims, which means Christine Wilson could take her seat after the swearing in of Rohit Chopra, Noah Phillips, Rebecca Slaughter and Joseph Simons, whom President Donald Trump plans to designate chairman (see 1801250055, 1801250066 and 1803260049). Ohlhausen looks forward “to welcoming them to the commission" once their appointments are made final by Trump. “A fully-staffed commission will better enable the agency to protect consumers from identity theft, and thoughtfully address concrete privacy and data security harms,” said Computer & Communications Industry Association CEO Ed Black.

Senate Commerce Committee Chairman John Thune, R-S.D., looks forward to working with the FTC on “challenging issues such as robocalling, privacy and data security.” House Commerce Committee Chairman Greg Walden, R-Ore., and Digital Commerce and Consumer Protection Subcommittee Chairman Bob Latta, R-Ohio, cited the IoT, data security and robocalls, while welcoming the consumer protection cop back to “full strength.”

Wiley Rein lawyer Scott Delacourt said one “hangover issue” will be the informational injury effort, which Ohlhausen championed. The agency’s investigation of Facebook ties into the commission’s attempt to better understand how consumers are harmed when information about them is misused, he said. Jan Rybnicek, former attorney adviser to then-FTC Commissioner Joshua Wright, told us after a Congressional Internet Caucus Academy event that much remains publicly unknown on the Facebook situation: “It’s very possible they come out and say, ‘Maybe our best recourse is to make recommendations to the Hill for new legislation, or maybe there are actual remedial steps to take in this case.’ I have no idea -- a lot of that stuff is unknown to the public.” Outgoing Commissioner Terrell McSweeny and Ohlhausen worked together effectively, but there might be some matters that never moved and will be taken up by the new commission, he added.

Netcompetition.org Chairman Scott Cleland said the FTC should approach its Facebook investigation with humility and its “tail between its legs” because it’s clear the agency’s self-proclaimed “tough” 2011 consent decree with the social media giant “caught nothing.” If the agency proves a violation, expect a penalty bigger than the $22.5 million settlement the FTC reached with Google in 2012 over privacy violations (see 1208100031), Cleland said. “The bottom line is there’s big change afoot for the better at the FTC.”

American Antitrust Institute President Diana Moss said during a panel with Rybnicek that privacy is probably best addressed through legislation, not antitrust enforcement. She suggested the state of American privacy could be a market failure -- a lack of transparency from companies that collect data. “We would like to see cases brought that generally target competitive issues in digital markets, should that be the appropriate policy tool, but that doesn’t mean there aren’t other policy tools to deal with privacy,” she said.