Greetings from Portsmouth, NH!
After a year of uncertainty and lack of regulatory appointments, this week finally brought with it some action for the country's main privacy enforcement authority. On Thursday evening, President Donald Trump nominated two Republicans to the Federal Trade Commission and sent two other previous FTC nominations to the Senate.
Republicans Noah Phillips and Christine Wilson were both nominated Thursday and join Republican antitrust lawyer Joe Simons, who was nominated to head up the agency last year, and Democrat Rohit Chopra, a former official at the now beleaguered Consumer Financial Protection Bureau, for consideration by the Senate.
I can tell you we've had several conversations here in the office regarding the state of the FTC. Especially earlier this week when news broke that Acting FTC Chairman Maureen Ohlhausen is now in line to be nominated for a federal judgeship. We wondered aloud whether that meant the FTC would move on with just one remaining commissioner, Democrat Terrell McSweeny.
Now it's clear that a new team of commissioners will fill several empty seats at the FTC. With Ohlhausen likely headed to that judicial appointment with the U.S. Court of Federal Claims, it will be interesting to see the direction the agency will move going forward.
Simons has extensive experience with antitrust issues, including as FTC competition director from 2001 to 2003. Phillips has been serving as chief counsel to Sen. John Cornyn. Wilson has experience with the FTC as chief of staff to former FTC Chairman Tim Muris. In addition to his work at the CFPB, Chopra has been working at the Consumer Federation of America.
The EU is already leading the antitrust charge against large U.S.-based technology companies, and, even here in the States, it appears the "love affair" Washington has had with Silicon Valley may be waning. Part of that, of course, is the role several large companies played in the proliferation of so-called "fake news," and the alleged roles played by Russia on several social media platforms to affect domestic politics, including the 2016 presidential election.
Will this new cadre of FTC commissioners take a stab at some of Silicon Valley's data-hungry tech companies? Will they move against some large mergers currently under consideration? And what about data security and privacy enforcement actions? Will those ramp up? For the latter, it's hard to imagine any heavy-handed regulatory action will take place under the current administration, but enforcement actions under the deceptive prong of the FTC Act will likely be on the table. All in all, it's too early to tell what will happen, but this will be a very interesting area to watch moving forward.
Not to be left out, the Privacy and Civil Liberties Oversight Board appears to be looking at a revival as well. On Wednesday, the Senate Committee on the Judiciary questioned Trump PCLOB nominee Adam Klein. The brief hearing appeared to go well for Klein, according to a report from Angelique Carson, and, with the recent reauthorization of Section 702 of the FISA Amendments Act, perhaps the long-dormant surveillance oversight board will rise from the dead.
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