How Biden is changing US privacy via the FTC

By Emily Leach

Photo: Carol M. Highsmith, Public Domain

It seems like only a matter of time before congress moves in earnest to facilitate broad privacy protections. Many of us in the privacy world expected that once states started enacting comprehensive privacy laws, the federal government would follow suit. After all, the complexity of following potentially 50 different state privacy laws will be both overwhelming and costly to businesses and confusing to consumers. However, with California, Virginia, Colorado and arguably Nevada all having comprehensive consumer privacy laws in place, there’s no visible sense of urgency at the federal level. Despite this, the Biden Administration is finding ways to make waves in the privacy world.

The Federal Trade Commission in its role in enforcing the FTC Act, is the U.S.’s de facto privacy regulator. While it took a pretty big hit this spring when the Supreme Court took away its ability to seek monetary relief in deceptive practices cases, recent changes to the agency indicate that its powers and impact are likely to broaden in the near future.

In June, President Biden appointed Lina Khan as Chair of the Federal Trade Commission. Khan has a strong antitrust background and a reputation of being critical of big tech and the power these companies have acquired. Since taking the helm as FTC Commissioner in June, Khan has led the FTC with a seriousness to reign in big tech, including privacy matters as well as anti-trust issues. In the FTC’s first meeting, Khan highlighted initiatives such as broadening the agency’s ability to conduct anti-trust investigations and conduct rulemaking — a power the FTC hasn’t used much in recent history.

Khan’s schedule has included meetings with other prominent critics of big tech including civil rights leaders and Senators including Amy Klobuchar (D-MN), who is a proponent of empowering the FTC to go after the tech sector, and an expert on Section 230, which provides immunity to web platforms in relation to third-party content. Khan has also spoken with European antitrust enforcer Margrethe Vestager, who told The New Statesman, “We have strengthened the competition dialogue that we’ve been having for a very long time with our US colleagues to lift that to a higher and maybe more strategic level.”

Biden’s latest appointment to the FTC is privacy advocate Alvaro Bedoya, founder of Georgetown University’s Center on Privacy & Technology, former chief counsel to the Senate Judiciary Subcommittee on Privacy, Technology and the Law, and one of the top minds in privacy. Bedoya replaces Rohit Chopra, who was tapped to lead the Consumer Financial Protection Bureau. The combination of Khan and Bedoya has the potential to change the privacy enforcement landscape in the U.S. And to bolster their efforts, Biden included in his $3.5 Trillion economic package $1 billion to the FTC budget over the next 10 years specifically allocated to privacy. This would represent about a 30 percent increase in the FTC’s projected appropriations and was passed by The House Energy and Commerce Committee, though the package is currently facing big challenges on the Hill.

The FTC will have its work cut out to change practices that significantly contribute to companies’ bottom lines. However, with increased public support and a trend in companies prioritizing consumer trust and data governance, the time may be right for these changes to have a big impact.

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