In a Q&A for Inside1to1:PRIVACY, Morrison & Foerster’s D. Reed Freeman, CIPP/US, analyzes the implications of Federal Trade Commission v. Wyndham Worldwide Corporation, “specifically, the Count II ‘unfairness’ claim—and Wyndham’s motion to dismiss.” Wyndham’s assertion that the FTC has assumed authority not given by Congress to regulate data security “is essentially right,” said Freeman. “Wyndham argues that Congress has enacted a number of data security laws applicable to specific sectors but that it has failed to enact a general substantive data security law, and therefore, according to Wyndham, Congress has delegated to itself the authority to create data security laws and has not left it to the FTC to fill in the gaps, especially using its unfairness authority.”
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