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United States Privacy Digest | Notes from the IAPP Publications Editor, April 27, 2018 Related reading: Notes from the IAPP Publications Editor, Dec. 7, 2018

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Greetings from Portsmouth, New Hampshire!

For the first time since 2015, we have a full complement of leadership at the U.S. Federal Trade Commission. Yesterday, the Senate confirmed all five nominees to head up the nation’s top privacy enforcement agency. The FTC has had only two commissioners for more than a year now, and Terrell McSweeny is due to step down from her role April 28. Acting Chairman Maureen Ohlhausen will step down, as well, and is looking to get confirmed for her new role as a judge on the Court of Federal Claims.

In an official statement Thursday, Ohlhausen congratulated the incoming commissioners: “I look forward to welcoming them to the Commission once their appointments are made final by President Trump.” McSweeny announced her resignation April 16, thanking Ohlhausen: “I am proud that together we cast more than 500 unanimous votes to protect consumers and competition. In a highly charged and partisan time, we worked to make sure that the FTC remains an expert agency governed by bipartisan consensus.”

Senate Commerce Committee Chair John Thune, R-S.D., said he looks forward to working with the new leadership on such issues as privacy, data security and robocalling. “The FTC is a critically important agency focused on ensuring both consumer protection and fair competition in the marketplace,” he added.

It will be interesting to see how the new class of commissioners will run the FTC. The agency is currently investigating whether Facebook violated its 2011 consent decree when it shared personal information of 87 million users with the now-infamous data analytics firm Cambridge Analytica. Notably, the FTC is also investigating last year’s data breach at Equifax and will be re-engaging with its enforcement of internet service providers, among many other initiatives.  

Of the two outgoing commissioners, Ohlhausen consistently backed a pragmatic harms-based approach to privacy enforcement, while McSweeny was more outspoken about unfair privacy practices and internet-of-things data security. Incoming Chairman Joseph Simons has an extensive background in antitrust. He’s also quite familiar with the agency, having served on its competition bureau under President George W. Bush.

Simons will be joined by Republicans Noah Phillips, who has served as an aide to Sen. John Cornyn, R-Texas, and Christine Wilson, a former Delta Air Lines executive. Democrats Rohit Chopra, an outspoken voice in consumer advocacy and former Consumer Financial Protection Bureau official, and Becca Kelly Slaughter, an adviser to Sen. Chuck Schumer, D-N.Y., will round out the commission.

With the EU General Data Protection Regulation just weeks away from taking effect and increasing criticism from Europe about the viability of the EU-U.S. Privacy Shield framework, will the FTC take a hands-on approach to privacy? Under Simons’ leadership, will it instead focus more prominently on antitrust, mergers and acquisitions, and competition issues? Obviously, it’s too early to tell at this stage, but we’ll surely be monitoring the latest developments in the coming months. And, before I forget, be on the lookout for more reporting from the IAPP in the next few weeks on this incoming class of commissioners. Stay tuned.

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