The Trump administration announced last week it had nominated Joseph Simons to lead the U.S. Federal Trade Commission. Perhaps unsurprisingly, Simons is an antitrust attorney who formerly headed the FTC's Bureau of Competition from 2001 to 2003. His background isn't in privacy or data protection.
Googling around for him, it's hard to turn up much. You'll find hits for the firm at which he currently works, Paul Weiss. You'll find a couple of speeches he made years ago, one on "Merger Enforcement at the FTC" from back in his day at the bureau. How will he approach privacy and data protection enforcement if confirmed by the U.S. Senate to become chair? It's a bit hard to say.
Despite his wanting record on data protection and privacy, however, it's a well-known fact that the agency's staff attorneys carry the FTC's institutional memory from chair to chair and commissioner to commissioner, so any concerns about his ability to regulate in that space would likely be warrantless. But will he choose to regulate it?
For possible answers, former FTC Chairman Jon Leibowitz, who ran the commission from 2009 to 2013, points to the commission's history, particularly the last 20 years. Leibowitz, a Democrat, was appointed to the chairmanship by Former President Barack Obama, but he started at the FTC as a commissioner with a Republican chair and remembers well the role staff played in acclimating him.
"It's not an agency where there are sea changes whenever a different administration comes in. The commission has really never had a sea change on data security and privacy," he said, despite leadership changes from Republicans to Democrats and back again. "It's had an evolution, and that evolution has been largely nonpartisan. There's been consistency, for the most part, no matter which party controls the majority. And I think that consistency will continue."
Leibowitz, who's now at Davis Polk & Wardwell, came to the commission just after Simons left for private practice in the early 2000s, but he's worked with him on various FTC issues for the last 15 years or so. He speaks with sincere confidence about Simons' abilities to chair the agency. He describes him as "exceedingly bright."
Sure, his background is in antitrust and M&A, but he's not the first potential chairman to come in a little lopsided on his expertise. Leibowitz recalls his own on-boarding.
"I had a lot of getting up to speed to do," he said. "I can't say enough about how professional the staff was in telling me what the commission had generally done, but also giving me the counter arguments and letting me make decisions on my own. Which doesn't mean there isn't a creative tension between commissioners and staff, which is what Congress intended when it created independent agencies."
William MacLeod has known Simons for 30 years. They met at the FTC in the 1980s. MacLeod, now at Kelley Drye & Warren, was running the Bureau of Consumer Protection and Simons was a senior official at the Bureau of Competition. MacLeod remembers well Simons' proficiency in analysis, a skill he says will be essential should he be confirmed to chair the agency.
"Data protection and privacy are cases that employ the same sorts of economic balancing that competition law has at the center of its discipline," MacLeod said. "There is always a question of: What is a reasonable measure of data security practices? And you have to weigh the costs and benefits of added security, because security is expensive. And by the same token, on the privacy side, it's very important that privacy regulations recognize the value of information to allow companies to operate more efficiently. It's going to be a constant effort by governments around the world to measure these and reach the right decisions on rules and cases."
In that way, Simons is well suited for the chairman role, MacLeod said. "That's what competition lawyers do. So I think [Simons] is going to be in a very good position to analyze these issues and handle this aspect of the FTC's jurisdiction."
MacLeod anticipates that the FTC will leverage Simons' expertise in economics in the near-term.
"I expect we are going to see economic analysis much more prominently in the decisions and policy announcements of the commission. I welcome that, because I think economics is critical to what the commission does," he said.
For his part, Leibowitz is confident the right guy has been tapped. He said a solid chair is someone "who is smart, knows how to build a consensus, listens to people — staff, other commissioners and outside parties — and can make decisions. And my sense is [Simons] has all those qualities, and he'll be a really good chair."
For now, it's up to the Senate to decide whether it agrees.
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