After of a series of delays during the confirmation process, the U.S. Senate approved the nomination of Georgetown University law professor Alvaro Bedoya to fill the remaining commissioner vacancy on the Federal Trade Commission. Bedoya’s confirmation now gives Democratic appointees a 3-2 majority on the FTC’s Board of Commissioners.
In a statement released by Georgetown University Law Center on Privacy and Technology, Bedoya said he is excited to work with his fellow commissioners and "truly thrilled to work alongside the public servants of the Federal Trade Commission."
Bedoya, who was nominated to the FTC by President Joe Biden in September, replaces Rohit Chopra on the FTC and will finish the remaining seven years of his term. Chopra left the agency last fall to head up the U.S. Consumer Financial Protection Bureau.
Following the confirmation vote, FTC Chairwoman Lina Khan tweeted she was “excited” to begin working with Bedoya, writing his “knowledge, experience and energy will be a great asset to the FTC as we pursue our critical work.”
FTC Commissioner Noah Phillips, a Republican, also congratulated Bedoya. "I look forward to working with him," he said. Commissioner Christine Wilson, also a Republican, shared in the applause and tweeted, "His deep experience on privacy issues will contribute greatly to the FTC's work in this area. I look forward to collaborating with him, particularly on children's privacy."
The confirmation vote was deadlocked along party lines 50-50 before Vice President Kamala Harris cast the tie-breaking vote in favor Bedoya’s appointment. Harris and U.S. Sens. Chris Murphy, D-Conn., and Ron Wyden, D-Ore., had tested positive for COVID-19 three weeks earlier, which further delayed Bedoya’s confirmation vote. Senate Majority Leader Chuck Schumer, D-N.Y., filed the motion for cloture May 9 to move Bedoya’s confirmation to a vote.
With a 3-2 majority among commissioners, the FTC is expected to ramp up activity in the coming months.
An 'aggressive agenda' moving forward?
"The arrival of Alvaro Bedoya at the FTC means Lina Khan can move forward with her ambitious agenda with or without bipartisan support, particularly in the privacy arena in which Bedoya brings deep expertise," said Perkins Coie Partner Janis Kestenbaum, who previously served as senior legal advisor to former FTC Chair Edith Ramirez. "We’ll see the impact of this in the enforcement front, where I expect we will see more cases being announced and the kick-off of the 'commercial surveillance' rulemaking under the FTC’s Magnuson-Moss procedures — which will be novel and of enormous significance."
Kelley Drye & Warren Of Counsel Jessica Rich, a former director of FTC’s Bureau of Consumer Protection from 2013-2017, agreed the agency will move "rapidly to launch the process for developing a Magnuson Moss privacy rule to limit what Chair Khan calls ‘commercial surveillance.’" Rich said Bedoya’s confirmation had been somewhat controversial among Republicans and corporate interests because it may give Khan a chance to pursue her “aggressive agenda.”
The Providence Group co-founder Dan Caprio, who previously served as chief of staff to former FTC Commissioner Orson Swindle, shared a similar characterization of the FTC's agenda moving forward, saying, "The FTC will pursue a much more aggressive enforcement agenda on competition and consumer protection cases now that Chair Khan has a majority."
Though partisanship in Washington has not passed the FTC by, some experts believe there is room for consensus among Democrats and Republicans.
Rich said, “The Republicans are worried about the FTC taking actions that they view as anti-business. I expect (Bedoya) to work with the Republicans to find common ground. I also think that any proposals by the FTC should rise and fall on their merits. If the FTC overreaches, there are processes to challenge that.”
However, Rich said she did not believe Bedoya would simply be a “rubber stamp” for Khan’s priorities as a commissioner. She said, on the consumer privacy side, she anticipates the FTC to move toward tightening regulations around targeted advertising and amending the Children’s Online Privacy Protection Rule.
Children's privacy updates and more on the horizon
Several insiders who shared comments with The Privacy Advisor expect the launch of a privacy rulemaking and a focus on children's privacy, as was hinted at in Commissioner Wilson's congratulatory tweet to Bedoya.
Wilson Sonsini Partner Maneesha Mithal, a veteran of the FTC for 20 years, said Bedoya's confirmation "is a great development" and that "with his confirmation, we can expect a flurry of new privacy enforcement activity at the FTC, as well as the launch of a privacy rulemaking. Given his interests, I would also expect an increasing focus on issues like children’s privacy and advertising, location privacy, biometrics, and racial justice."
Kelley Drye & Warren Partner Alysa Hutnik, CIPP/US, said, "Based on recent commentary to date, we anticipate seeing activity on COPPA privacy rulemaking and a keen focus on children’s privacy, edtech, and digital advertising, algorithmic decision-making, and data sharing practices, particularly in areas that involve sensitive personal information or vulnerable populations."
Additionally, Hutnik said, "We are also closely watching for signs of more privacy enforcement actions (either litigation or settlements). When these are publicly disclosed, they signal notable agency policy changes and provide more examples of how the agency is seeking creative remedies post-AMG. Thus far, there have been only a few public enforcements by the FTC in the privacy space, but they have been notable for their emphasis on deletion of algorithms. How far the agency attempts to apply this remedy — and Bedoya’s impact on such policy — is going to be closely watched, and should factor into company risk assessments of their data practices."
Bedoya co-founded the Georgetown University Law Center for Privacy and Technology where he investigated police use of facial recognition. He also specialized in civil rights and discrimination law.
Prior to arriving at Georgetown, Bedoya served as chief counsel of the U.S. Senate Judiciary Subcommittee on Privacy, Technology and the Law and served as a staffer under former U.S. Sen. Al Franken, D-Minn. His work included conducting oversight on cellphone location privacy, biometrics and helped draft portions of the USA Freedom Act, which reformed National Security Agency data collection practices in the fallout of the Edward Snowden leaks.
Georgetown law professor David Vladeck, Bedoya’s co-founder of the Center for Privacy and Technology, said he recruited Bedoya to leave his work in the U.S. Senate to launch the center because he, “knew he would be a transformative leader on matters of privacy, surveillance and equity.” Beginning in 2009, Vladeck served four years as the director of the FTC’s Bureau of Consumer Protection.
“Having worked at the FTC, and worked closely with the commissioners, I know that Alvaro will be a transformational commissioner,” Vladeck said. “Alvaro’s expertise on privacy will enrich the commission's work in the area. He is a consensus builder and will be able to move the commission's work forward (because) he knows about the platforms and has ideas about how to ensure that consumers are protected from the misuse of their data, while at the same time, not stifling innovation.”
IAPP Editorial Director Jedidiah Bracy, CIPP, contributed to this article.
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