FTC Likely to Pursue Consumer Privacy Issues Under Either Party

Observers should “not expect a big difference” at the FTC if President Barack Obama wins reelection, said former Chairman William Kovacic, appointed by President George W. Bush and now a George Washington University law professor. “The core of what they've been doing is the core of what they will do in the future,” he said. If nominee Joshua Wright, a former scholar in residence at the FTC’s Bureau of Competition and current professor of law at George Mason University’s law school, is confirmed, his “zone of enforcement for antitrust would be somewhat narrower” than Rosch’s has been, Kovacic said. Wright is the first economist nominated to the FTC by a Democratic president since 1915, Kovacic noted. Whether Wright gets confirmed before this Congress adjourns is “tied up in the larger question of how much work the Senate will do before the end of the year,” he said: “On the merits, he should go sailing right through.” Kovacic denied media reports that he’s in the running for an FTC appointment should Mitt Romney win the presidential election.

"The FTC would fare much better under the Democrats than under the Republicans,” said Albert Foer, president of the American Antitrust Institute. If Obama is president when Leibowitz leaves the agency, he'll likely be replaced by “a Democrat of probably similar views, which is to say a moderate aggressive enforcer” of consumer protection laws, Foer said: It could be either of the Democratic commissioners -- Edith Ramirez or Julie Brill -- or someone from outside the agency. Romney “has not said anything to indicate that he thinks either antitrust is important or consumer protection is important,” Foer said, and there’s no reason to think he would appoint an FTC chairman that would pursue either of those issues. Instead, “they would be focused much more than today on cartels and bid rigging,” as opposed to issues of vertical integration, he said. If Romney wins, he has “a lot of places to draw from” when looking for nominees, Foer said, including “plenty of strong Republican lawyers” and Capitol Hill staffers. New administrations typically take some time before dealing with FTC appointments, which could give the agency a type of lame-duck period of six months or more, said Foer, whose group often seeks antitrust enforcement.

A Republican-led commission would demonstrate “a more economics-based approach to both consumer protection and, in particular, privacy, as well as to antitrust,” said President Tom Lenard of the Technology Policy Institute, which often supports deregulation. Commissioner Maureen Ohlhausen and nominee Wright are “very much in the school of having an economics-based approach to all of those issues,” he said. Under either party, he said, consumer privacy “is obviously going to be a major focus of the commission."

A new commissioner of either party could be a strong advocate for consumer privacy, said Marc Rotenberg, executive director of the Electronic Privacy Information Center (EPIC). “We don’t think there’s a fundamental disagreement over the need to protect consumer privacy” between the parties, he said: “They will simply take a different path to get there.” He hopes the commission addresses privacy, he said. “We think it’s the top concern for consumers in the U.S. today."

Under Leibowitz, the FTC has taken commendable steps, Rotenberg said, but “there is still a lot of unfinished work ahead.” EPIC is “concerned that they don’t seem to be enforcing their consent orders,” he said. The group would like the FTC to enforce the Consumer Privacy Bill of Rights, published by the White House earlier this year, as well as address online ad data practices, which “continue to impose a specific threat to consumer privacy,” Rotenberg said. He hopes to see the FTC take up issues around online gaming, “not an area that has received a lot of attention yet,” as well as go further with privacy protections around facial recognition software, he said. The safeguards outlined in an October report from the FTC “are still not sufficient,” he said. These issues will be “real challenges to whoever the chairman is,” he said.

There are a few clear picks for whoever wins Tuesday’s elections, said antitrust lawyer and former FTC attorney David Balto. He said that among Romney’s options are Susan Creighton, antitrust lawyer at Wilson Sonsini and a former director of the agency’s Bureau of Competition. Balto said Obama could consider Justice Antitrust Division Deputy Assistant Attorney General Leslie Overton or Terrell McSweeny, the department’s chief counsel for competition policy and intergovernmental relations and former domestic policy adviser to Vice President Joe Biden.

The next president should focus on improving the relationship between the Department of Justice and the FTC, Kovacic said: It would be “a good issue for a new administration, of either party, to take on.” There is “a very reluctant and incomplete cooperation” between the two agencies, which “gets in the way of achieving practical results,” he said. Kovacic suggested requiring the FTC and Justice to cooperate on their policy agendas. Any reduction in FTC resources would come as the result of cuts across the board, he said, which makes it more important that the FTC and Justice work together. “Whoever is president, they may have less money to work with,” he said, because of the possibility of lower budgets, Kovacic said: Whoever wins Tuesday “should start looking at the infrastructure of the government very seriously.”