This article was updated to reflect the March 30 U.S. Senate vote to advance Bedoya’s nomination and move forward with confirmation.
U.S. Federal Trade Commission Chair Lina Khan will make her first public address focused on privacy issues as chair during the
Appointed chair in June 2021, Khan previously served as counsel to the U.S. House Judiciary Committee’s Subcommittee on Antitrust, Commercial, and Administrative Law, and as legal advisor to FTC Commissioner Rohit Chopra. Antitrust and competition have so far led the way as key areas of focus for Khan, but Consumer Reports Director of Consumer Privacy and Technology Policy Justin Brookman — former policy director of the FTC’s Office of Technology Research and Investigation — said he expects Khan “to make clear that privacy is a key priority for her FTC as well.”
While it’s still early on in her tenure, through recent settlements with California-based advertising platform OpenX and customized merchandise website CafePress.com, Brookman said, “we’re already seeing the Khan FTC take a harder line in some of their privacy settlements.”
The $2 million settlement between the FTC and OpenX over Children’s Online Privacy Protection Act violations includes a data minimization requirement, mandate to use multi-factor authentication, direct notice to consumers with an admission of wrongdoing, and monetary relief.
“Along those lines, I would expect her to make clear that the FTC is going to insist on real behavioral changes before settling cases under her tenure — it won’t be enough to just sign a consent order promising not to break the law again,” Brookman said.
Baker Botts Special Counsel and former FTC senior attorney Benjamin Rossen said Khan has made general statements “about how she thinks the agency should impose substantive limits on the types of data that companies can collect,” but he said, overall, “we haven’t yet heard a clearly articulated vision about how the FTC should change its approach” on privacy issues.
With an antitrust background and goals in the antitrust arena, Perkins Coie Partner Janis Kestenbaum, who previously served as senior legal advisor to former FTC chairwoman Edith Ramirez, said it’s no surprise the area has been a priority for Khan. But, she said, “I don’t think we’ve seen, or will see, an inattention to privacy, particularly because of Chair Khan’s efforts to identify linkages between competition and privacy and to foster greater cross-pollination between the privacy and competition work of the FTC, as well as the strong interest in privacy by fellow commissioners.”
The privacy community has been closely watching a 2-2 party deadlock on the Federal Trade Commission, with Founding Director of the Center on Privacy & Technology at Georgetown Law and privacy advocate Alvaro Bedoya’s nomination in limbo since September 2021. The U.S. Senate on March 30 voted to advance Bedoya's nomination and move forward with his confirmation by a vote of 51-50, with Vice President Kamala Harris breaking a 50-50 tie.
Rossen said Khan hasn’t been able to make much progress in her first year at the FTC, in part due to the deadlocked commission, adding we may “suddenly see a flurry of activity” in the event Bedoya is confirmed.
“It does not appear that she had any clear privacy agenda when she arrived at the FTC. I hope that focus will change when Alvaro Bedoya joins the Commission because he is a genuine privacy expert and his point of view is sorely needed,” he said.
Kestenbaum said it’s “apparent” and “commendable” that Khan “doesn’t want to do things simply because they’re what the FTC has done before,” but she pointed to what she’s seen as “diminished bipartisanship” at the FTC as “concerning.”
“Bipartisanship has been a hallmark of the FTC and it has real value. To illustrate, in the last decade, we saw many goals and approaches shared by President Trump’s and President Obama’s FTC chairs. There are not many federal agencies that had the degree of continuity from the Obama to Trump administrations that the FTC enjoyed,” she said. “If bipartisanship is lost, we may start to see big ideological swings with each change in presidential administrations.”
It will also be interesting, Brookman said, whether Khan mentions another hot topic among the privacy community, consideration of a rulemaking process on privacy and artificial intelligence
