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The Privacy Advisor | Senate questions FTC nominees on harms, robocalls and breach notification Related reading: Using data integrity to preserve democracy

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The U.S. Senate Committee on Commerce, Science, and Transportation yesterday brought together President Donald Trump's four nominees to the Federal Trade Commission ahead of a vote on whether to confirm them. Sen. Richard Blumenthal, D-Conn., said at the hearing's outset he believes the FTC is coming into a new era, both consumers and healthy competition have never been more at risk, and the commission needs an infusion of energy and tools to help protect them. That energy, barring an unforeseen roadblock, looks like it will take the form of Joseph Simons (chair nominee and a Republican), Rohit Chopra (Democrat), Noah Phillips (Republican) and Christine Wilson (Republican). 

The commission comprises five, bipartisan commissioners who serve seven-year terms, at the pleasure of the president. Interim Chairperson Maureen Ohlhausen is slated to step down soon, having been nominated by Trump for a judgeship at the U.S. Court of Federal Claims. And it's rumored Democratic Commissioner Terrell McSweeny, whose term has expired but who remained on the commission during the administrative transition, will be replaced by one of New York Senator Chuck Schumer's top aides, Rebecca Slaughter. 

While the hearing itself was routine and mundane — the Senators had met with the nominees behind closed doors before the public hearing, meaning the it was largely ceremonial — it did touch on some of the more controversial issues the commission will likely be faced with in the coming months and years. But the hoping-to-be-confirmed candidates, families seated behind them, in general, dodged answering the Senators questions with much other than, "I look forward to working with my fellow commissioners on this issue if confirmed." 

The most assertive of the nominees seemed to be Rohit Chopra, formerly the assistant director at the Consumer Financial Protection Bureau and currently a senior fellow at the Consumer Federation of America. Asked by Sen. Maria Cantwell, D-Wash, for example, whether Equifax waited too long to notify consumers of its massive data breach last year, the panel of nominees carefully skated around it, citing the ongoing investigation, agreeing it was a "significant issue." When Cantwell pressed into Chopra, however, with, "Do you think five weeks is too long?" Chopra was willing to say, "As a general matter and not speaking about any specific situation, several weeks after a major breach of personal data does not sound like it's fast enough."  

When his co-nominees were asked the same and dodged the question citing ongoing investigations, Cantwell came back with, "I think the facts are well known. ... I think the thing we want to understand is what your personal views are on how important it is you think the FTC play an aggressive role here," speaking to the regulation of breach notification. If the nominees, as potential FTC commissioners, aren't thinking about the role the FTC will play on regulating consumer privacy, "then that's of great concern to me and I'm pretty sure it'll be of great concern to my constituents." 

All of the commissioners did agree that the FTC should be given civil penalty authority. That assertion was bolstered by a statement by Blumenthal's mention of his bill, the Data Breach Accountability and Enforcement Act of 2017, which he asked the nominees to support. 

Simons said he's concerned, without a civil penalty authority, whether the "FTC has sufficient authority to deal with data breaches, particularly in terms of being able to create a sufficient deterrence, create an incentive for the companies to be able to take care of the consumer data, as they should." 

Asked by Nevada Sen. Catherine Cortez Masto what nominees considered the agency's most contentious issues on consumer protection forthcoming, Simons said it's how the agency handles data breaches: "They're becoming much more significant, much more frequent, and I think that's a real serious concern for us and that we need to pay close attention to it." 

Wilson, who worked as chief of staff to Former FTC Chairman Timothy Muris in the early 2000s, said she agreed with Simons. Phillips, who's spent almost a decade as chief counsel for Sen. John Cornyn, R-Texas, also agreed, but said the agency can't allow the contentious nature of such issues to distract it from the "bread and butter of the agency on the consumer protection side, looking out for children, veterans, the elderly and Americans generally." 

Perhaps a less sexy topic than data breaches, telemarketing and robocalls also came up more than once at the hearing, which lasted just short of three hours. 

Wilson said the "do not call" initiative was launched during her time under Muris, but technology has outpaced that development and now there are "holes that need to be plugged," adding robocalls are a form of harassment. 

"I think we need to find both a technological advancement and significant enforcement in that area." 

Chopra went one step further, saying, "I think we need to also look at robocalls and telemarketing issues not as an inconvenience but as a real harm to many people. Many individuals do not have the luxury of screening their calls, they might be waiting for a doctor's call or the next job, and I think this is something that we need to remember, that it is not simply an annoyance." 

Senators now have until Feb. 20 to submit questions to the nominees for the record, and nominees may answer until Feb. 26. A Senate vote to confirm the nominees will follow. 

The hearing's video archive can be found here, as can the nominees' prepared statements. 

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