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FTC Seeks Comment on Fundamental Privacy Enforcement Issues

On August 6, the FTC announced that it is seeking comment on a number of topics that are fundamental to its work, including on privacy. These topics will form the basis of its hearings on “Competition and Consumer Protection in the 21st Century”, which it will hold from September through January 2019, as we recently mentioned on this blog. The hearings will cover a variety of topics critical to the FTC, a few of which relate directly to privacy issues. These include:

• The intersection of privacy, big data, and competition, including the benefits and costs of privacy laws, and the benefits, costs and conflicts of such laws existing at different levels of government (federal, state, local, etc.);
• The Commission’s remedial authority to deter unfair and deceptive conduct. This is probably the most significant topic, because it touches on the expansiveness of the Commission’s authority to regulate privacy issues. It follows on Commission Chairman Simons’s recent testimony in the House of Representatives that the Commission may need more and better authority in the privacy realm than its current reliance on Section 5 of the Federal Trade Commission Act’s focus on unfair and deceptive practices;
• The welfare effects and privacy implications of using algorithmic decision tools and predictive analytics; and
• The efficacy of the FTC’s current investigation and remedial processes.

Those who wish to comment only have until August 20 to do so – for now. However, the FTC has said that it will also solicit comments down the road, ahead of each of its 15-20 public hearings, and upon their completion.

Putting it Into Practice: For those who have views on the FTC’s exercise of its powers and wish to express them to the Commission, this is the time to do it. It only holds these kind of broad, introspective hearings every 20-25 years, and it will be making some important decisions once they are completed. If you can’t get comments in by the current deadline of August 20, you might think about doing it in the upcoming opportunities over the next five months. For instructions on how to submit comments, check out the Federal Register notice, or get in touch with us.

Copyright © 2018, Sheppard Mullin Richter & Hampton LLP.

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About this Author

Jonathan E. Meyer, Sheppard Mullin, International Trade Lawyer, Encryption Technology Attorney
Partner

Jon Meyer is a partner in the Government Contracts, Investigations & International Trade Practice Group in the firm's Washington, D.C. office.

Mr. Meyer was most recently Deputy General Counsel at the United States Department of Homeland Security, where he advised the Secretary, Deputy Secretary, General Counsel, Chief of Staff and other senior leaders on law and policy issues, such as cyber security, airline security, high technology, drones, immigration reform, encryption, and intelligence law. He also oversaw all litigation at DHS,...

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