This week, Commissioner Joshua D. Wright left the Federal Trade Commission (FTC) to return to his faculty position at George Mason University. Wright was one of two Republican commissioners and, in his almost three-year tenure at the Commission, Wright focused mostly on the FTC’s antitrust responsibilities.

That being the case, should the privacy community care about Wright’s departure? I think so.

Many privacy advocates have criticized what they see as Commissioner Wright’s overly empirical, economically driven approach to privacy and other consumer protection matters. Admittedly, privacy related harms do not always lend themselves to an evaluation of dollars lost or an empirical comparison of consumers’ privacy rights with other benefits gained from a company’s product or practice.

Despite this criticism, Wright contributed mightily to efforts to assure that the FTC used its deception and unfairness powers to protect privacy in a fact-based, disciplined manner that took into account the nature and degree of consumer harm compared to the consumer and economic benefit. 

For example, in a deception case against Nomi Technologies (April 23, 2015), Wright dissented from the Commission’s decision to publish a Consent Order. In Wright’s view, the FTC staff failed to establish that Nomi’s alleged violation of its privacy policy—not allowing consumers to opt-out, in person, of retail tracking—had a significant adverse impact on consumers, given the easy availability to consumers of an alternative opt-out method through the company’s web page. Ultimately, Wright believed that the deception alleged was not material to consumers, which was critical, in his opinion, to ensure that “the Commission’s deception authority is employed to deter only conduct that is likely to harm consumers and does not chill business conduct that makes consumers better off.” (Dissenting statement of Commissioner Joshua D. Wright, In the Matter of Nomi Technologies, Inc., April 23, 2015, at page 2.)

Wright brought the same rigor to his evaluation of the FTC’s privacy unfairness cases. For example, in Apple Inc. (January 15, 2014), the FTC issued an administrative complaint alleging that Apple engaged in unfair acts or practices by billing parents for activities engaged in by their children on the Apple platform, such as iTunes or other apps. The FTC’s standard for an “unfair practice” is one which causes substantial injury; is not outweighed by countervailing benefits, and cannot easily be avoided. Wright’s hard-nosed analysis of this standard and its application to Apple’s privacy platform led Wright to conclude that the harm was not substantial (as the injury was limited to a relatively small set of Apple customers) and that the benefits of Apple’s platform to consumers and competition were significant. In other words, a cost-benefit analysis applied to Apple’s behavior made clear to Wright that Apple was not using its platform in an unfair manner.

Both of these cases illuminate the hallmarks of Joshua Wright’s approach to privacy: identifying and weighing the underlying harm allegedly caused to consumers by the practice and applying a rigorous cost-benefit analysis.

In evaluating two recent FTC reports—the data broker report (May, 2014) and the Internet of Things Report (January, 2015)—Wright offered these cautionary thoughts:

“In each of these instances, it is my view that the Commission has, while fully intending to protect consumers, reacted prematurely and with unwarranted general suspicion of data, rather than grounding decisions and recommendations in economic and empirical analysis, or even waiting to see how some of these issues will actually evolve in the marketplace before acting.” (Remarks by Joshua D. Wright to the U.S. Chamber of Commerce, May 21, 2015, Washington, DC at page 11.)

Because of the conceptual rigor that Joshua Wright brought to his approach to privacy violations, he was sometimes tarred as anti-privacy. The better view is that Joshua Wright strengthened the FTC’s approach to privacy by attempting to ground privacy in an analytical, factual and evidence-based approach that emphasized finding a cognizable harm and then weighing that harm against the benefits of the activity.

This kind of deliberative approach will be missed.