FTC Watchers Expect Privacy Rulemaking Soon After Bedoya Joins

Expect the FTC to quickly initiate a comprehensive privacy rulemaking after nominee Alvaro Bedoya is confirmed (see 2204150063), former officials and advocates said in interviews.

Senate Majority Leader Chuck Schumer, D-N.Y., filed cloture earlier this month on Bedoya, a longtime consumer privacy advocate. Schumer’s office didn’t comment on the potential for a confirmation vote when the Senate returns next week. The FTC declined to comment beyond what Chair Lina Khan said last week at a conference about considering a potential privacy rulemaking (see 2204120062).

“Everyone does expect a quick launch of this process when Bedoya joins,” said Kelley Drye’s Jessica Rich, a former FTC Consumer Protection Bureau director under President Barack Obama. Bedoya has indicated his interest in targeting data collection issues, she said. A rulemaking will be a time-consuming, resource-intensive process, given the agency’s constraints under Magnuson-Moss rulemaking requirements, she said: “I could be wrong, but my view is the costs outweigh the benefits. It’s going to be years of effort” that will run well beyond Khan’s tenure.

Advocates widely support a rulemaking proceeding. The Electronic Privacy Information Center is “very much” in favor “as soon as possible,” said Executive Director Alan Butler. He noted the agency’s lack of first-offense civil penalty authority and the Supreme Court weakening its ability to seek injunctive relief (see 2104270086). “We know from experience that consent orders with no subsequent enforcement actions do not actually solve the problems of unrestricted data collection and corporate surveillance,” he said.

Khan said the commission is “considering” a rulemaking on “commercial surveillance and lax data security practices.” Market-wide rules “could help provide clear notice and render enforcement more impactful and efficient,” she said.

Rich and other former agency officials expect a broad rulemaking, which will further complicate the process. Expect the administration to “go broad,” said BakerHostetler’s Daniel Kaufman, former acting director-FTC Consumer Protection Bureau under President Donald Trump. The language the FTC used suggests it would be an effort to restrict data collection for advertising purposes, he said, noting Khan’s term “surveillance marketing.” He agreed with Rich the agency will likely issue an advanced NPRM shortly after Bedoya takes office, which will give a sense of how broad the agency plans to go.

Khan “might want a very broad privacy rule since it looks like Congress isn’t passing privacy legislation,” said former FTC General Counsel Alden Abbott, now a researcher at George Mason University. He said Khan has more of a legal pathway toward consumer protection rules than competition rules.

The commission understands it “must engage broadly in the issue to address both the fundamental loss of privacy online and new emerging threats,” said Center for Digital Democracy Executive Director Jeff Chester. It's long overdue for the FTC to "go big" on privacy and surveillance, said Fairplay Executive Director Josh Golin: Expect a “number of important initiatives to protect people once Alvaro is confirmed.”

Rulemaking requires resources, so Public Citizen supports the FTC's “stated goals of using the rulemaking process to tackle the issues that will make the biggest difference,” said Tech Accountability Fellow Cheyenne Hunt-Majer. “They should have the most impactful items as their top priorities once they have a full slate of commissioners.”