For those working in the privacy space, the FTC is a household name. Its enforcement actions and settlements have created a common law framework to which we turn for the dos and don’t of consumer interactions, and it's seen as the de-facto cop on the beat in the U.S. privacy space.
That’s why privacy pros may be watching closely to see what happens next as the agency anticipates who’ll fill the empty seat at the commission’s proverbial dinner table, a vacancy that’s existed since Commissioner Joshua Wright’s departure in August. Wright leaves in his wake Chairwoman Edith Ramirez and Commissioners Maureen Ohlhausen, Terrell McSweeny and Julie Brill—an all-female crew, for now.
The Federal Trade Commission is an independent government agency, established by President Woodrow Wilson in 1915, with a mission to protect consumers as well as prevent anticompetitive business practices. Its commissioners serve seven-year terms and are appointed by the president and confirmed by the Senate, with no more than three commissioners allowed to be of the same political party.
All that’s known now is the new appointee will necessarily be a Republican, as Ramirez, Brill and McSweeny are all Democrats. But where the new pick will come from—and when—is anyone’s guess.
Wright was a big antitrust guy, often testifying to Congress on the matter. And if anyone was equipped to serve on the FTC as an antitrust expert, it surely was Wright. He’s the co-author of the Supreme Court Economic Review and serves on the editorial board of the Antitrust Law Journal, and he’s the Director of the Global Antitrust Institute at George Mason, where he taught before his appointment to the commission and to where he’s since returned.
In fact, there are a number of former and current Republican commissioners with a history at George Mason, including former Chairmen Tim Muris and William Kovacic and current Commissioner Ohalhausen, leaving some to wonder whether that might be fertile ground for the next pick.
But whether the Republican appointee comes from George Mason or elsewhere, some are curious whether Wright’s replacement will be well versed in anti-trust versus consumer protection or privacy.
Samford University’s Prof. Woody Hartzog, co-author of "The FTC and the New Common Law of Privacy," isn’t sure.
“My guess is they’ll look to the best candidate and want to make sure they’re balanced on both issues,” he said. “I’d assume they’d find someone who’s very competent in both areas. But it wouldn’t surprise me if they picked someone who’s particularly strong in competition.”
Phyllis Marcus, who recently joined Hunton & Williams but spent nearly 17 years at the FTC, most recently as its chief of staff in the Division of Advertising Practices, said she’d expect the new commissioner to map closely to Wright in terms of expertise.
“I would expect the new person would come in with a deep background in the areas of antitrust and consumer protection and have a sense of where they’d like to see the agency going,” Marcus said.
Janis Kestenbaum, now at Perkins Coie but who spent years at the FTC as both an attorney and then senior legal advisor to Ramirez, said it’s important to have expertise in both consumer protection as well as anti-trust.
“It reduces their learning curve and means they can speak with more authority in the agency,” she said
WilmerHale's Reed Freeman said he wouldn’t be surprised “if they chose someone with his anti-trust chops and expertise.” However, there may be a more urgent need given the times:
“It wouldn’t be surprising if the president chose someone who has deep technological expertise, because one of the FTC’s priorities is to increase it’s technological capabilities,” he said.
Indeed, the FTC has made it a priority to expand its ability to regulate in a high-tech environment, establishing a Mobile Technology Unit when smartphones proliferated, hiring technologists including well-known researcher Ashkan Soltani and earlier this year announcing an Office of Technology Research and Investigation.
“The agency has made it a large focus to catch up with industry on its understanding of technology, so when it decides to bring an enforcement case, it understands the technology behind it and can speak the language of the company,” Freeman said.
Whether Wright’s replacement is tech or anti-trust savvy, it’s a safe bet he or she will be well versed in privacy before long if they aren’t already, as the commission continues to police that space.
“I think five years ago, maybe everyone implicitly understood the role the FTC was playing in privacy and data security, but that role has become much more explicit,” said Hartzog. He said, since the FTC’s 2012 white paper “Protecting Consumer Privacy in an Era of Rapid Change,” the commission’s role in privacy and data security has been “very consistent and explicitly planned.”
The traits Freeman thinks are most essential for an FTC commissioner to possess include an understanding of the law, an open mind and “an understanding of and willingness to listen to the defense in any given enforcement action, as well as foresight into the areas the commission should focus on next or going forward.”
The commissioner should also possess “a lack of hubris that results in one person trying to change the commission or its mission or its policy with a hard turn in any one direction,” he said.
Hartzog agrees. He said the person who comes on board should have a clear sense of the FTC’s mission and be willing to champion particular causes but also keep an open mind in conflict.
It should also be someone who sees the big picture, Hartzog said. “Someone who sees not just where we are going in a year or two years, but someone who can identify the most important things for long-term sustainability in the virtual world and offline world."
Asked who she hoped would join her at the FTC's helm, Commissioner Julie Brill said there are really several characteristics of a good commissioner.
“A few key ones are intelligence, grasping complex issues, working quickly and keeping up with a lot of disparate issues at the same time. Another important quality is caring deeply about the agency’s mission—and it’s important to note that I don’t mean someone who agrees with me or is of a particular political persuasion,” she said. “I’ve seen excellent commissioners and chairs who I’ve disagreed with me on many issues, for example Tim Muris and Bill Kovacic, but I always knew their positions were grounded in a deep commitment to the agency and a desire to further the FTC’s goals of protecting consumers and protecting competition."
In the interim, Kestenbaum said having a vacancy on the commission isn’t a huge deal.
“You have a solid democratic majority with the chairwoman, Brill and McSweeny,” she said. “With Ohlhausen as the sole republican, whether you have one republican or two doesn’t end up having a huge difference. It’s when there’s a 2-2 split that there’s a bigger possibility for a vacancy having an impact. As much as Commissioner Wright played a role in deliberations, to the external world it won’t end up making an enormous difference in terms of how votes look to the outside.”
For now, whether the vacancy will have a real impact is for those inside the commission to know and everyone else to speculate.
photo credit: Washington DC ~ Federal Trade Commission Building ~ Landmark via photopin (license)
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