The Federal Trade Commission (FTC) is widely recognized as the primary federal regulator of cybersecurity and data privacy by virtue of its authority under Section 5 of the Federal Trade Commission Act to take enforcement action against unfair and deceptive trade practices, which authority has been upheld by various courts including the U.S. Court of Appeals for the Third Circuit.
For just over a year, the FTC has operated with only two commissioners, one Republican and one Democrat. On April 26, 2018, the United States Senate confirmed five new commissioners, Chairman Joseph J. Simons, Noah Joshua Phillips, Rohit Chopra, Rebecca Kelly Slaughter, and Christine Wilson. Commissioners Simons, Phillips, Chopra, and Slaughter took their seats in early May. Commissioner Wilson will take her seat either when the current term of Commissioner Maureen Ohlhausen expires in early Fall 2018, or Commissioner Ohlhausen is confirmed to a judgeship, whichever comes first.
With five brand new commissioners, four lawyers, and one non-lawyer, the dynamic at the FTC will almost certainly change and data privacy is only one part of its mandate (the FTC also has key roles in other consumer protection areas and enforcing anti-trust laws). We will continue to monitor the FTC’s actions in the area of data privacy and cybersecurity, and offer insights on the new Commissioners’ backgrounds how they might approach this part of the FTC’s mandate.