Federal Trade Commission

In case you missed it, last week (on November 30), the National Telecommunications and Information Administration (NTIA) announced that it would convene a series of virtual listening sessions on privacy, equity, and civil rights. According to NTIA, the sessions (scheduled for December 14, 15, and 16) will provide data for a report on “the ways

For decades, the FTC has explained that the omission of information can lead to liability.  It is also a canon of statutory construction that an amendment helps reveal legislative intent. And of course, your mother put it simply: words that you say (and take back) have meaning.

Earlier this month, the Commission released its draft

On November 17, the Senate Commerce Committee held its eagerly-awaited hearing on the nomination of Alvaro Bedoya, a data privacy academic from Georgetown Law, to be FTC Commissioner. Bedoya is slated to replace Rohit Chopra, who departed the agency last month to become Director of the CFPB, and Bedoya’s appointment would once again give the

Last week. FTC Commissioner Christine Wilson delivered a speech with a title that made clear she intended to speak her mind: The Neo-Brandeisian Revolution: Unforced Errors and the Dimunition of the FTC.  

Predicting that the new FTC Leadership will fall far short of achieving its objectives — most of which she opposes — Commissioner Wilson

The Section 13(b) Fix:  Stand-Still on the Hill?Following House passage of 13(b) legislation this summer, Congressional Democrats seem to have lost some of the urgency with which they were moving to strengthen the FTC’s penalty authorities in the wake of the Supreme Court’s AMG decision. This is partly due to their preoccupation with a months’-long effort to move President Biden’s “Build Back Better” agenda and partly due to the need for some degree of bipartisan consensus in the Senate.  With the caveat that Congress can – and often does – surprise us, the prospects for a 13(b) fix any time soon remain murky at best.

Beyond Democrats’ pending budget reconciliation legislation, Congress’s focus through the end of the year is on deadlines for several “must-pass” bills (e.g., government funding, the debt ceiling, and the annual defense authorization bill).  While attaching policy riders to these year-end legislative initiatives is standard practice, it is unclear how hard Democrats may be pushing to include a 13(b) fix in the face of myriad legislative distractions, nor is it clear that Senate Republicans are ready to play ball.

Yes, there is always next year, but 2022 is projecting to be an even uglier legislative environment (if it could be imagined).  And while this could work either way for 13(b) – Democrats may be more desperate to make a deal (if they think they won’t be in power come 2023) and Republicans may be less willing to compromise (for the same reason) – it is unlikely that any legislative fix will include the exact language preferred by the FTC.  The end result could be that nothing happens here, with Republicans content to sit tight, and Democrats unwilling to beat their chests about 13(b) on the campaign trail.

Since most of our readers don’t regularly swim in these waters, let’s recap –
Continue Reading The Section 13(b) Fix:  Stand-Still on the Hill?

As we’ve all been following in the news, the House reconciliation bill to fund “human infrastructure” is still mired in negotiations, ever on the verge of either passing to monumental fanfare, or cratering in failure. Tucked away on page 671 of the 1684-page bill is a short provision that, despite scant attention, has the potential

In a much-anticipated announcement last week, the FTC amended the Gramm-Leach-Bliley Act (GLBA) Safeguards Rule, and proposed a further amendment requiring certain financial institutions to provide the FTC with notice in the event of certain security events.  Although these changes were announced after FTC Commissioner Chopra left the agency to lead the CFPB, he apparently voted prior to leaving to ensure 3/2 approval of the amendments in a Commission that remains divided.

What is GLBA Safeguards?

For nearly 20 years the Safeguards Rule has required financial institutions to develop, implement, and maintain comprehensive information security programs to protect their customers’ personal information.  Such programs must be appropriate to each entity’s “size and complexity, the nature and scope of [its] activities, and the sensitive of the customer information at issue.” For a generation, the Rule’s requirements have influenced data security standards in other sectors, emphasizing a flexible, process-based approach.  The amended Rule replaces some of that flexibility with more specificity.
Continue Reading GLBA Safeguards Gets a Makeover: Why it Matters for Businesses with Customer Information

The Supreme Court in AMG foreclosed the FTC’s ability to pursue monetary remedies under Section 13(b) of the FTC Act. That, however, AMG has not stopped the FTC from pursuing monetary relief directly in court, while attempting to bypass the statutory prerequisite of an administrative proceeding. The FTC is continuing to use Section 13(b) of the Act to attempt to obtain preliminary and permanent injunctive relief. At the same time, the Commission is coupling its 13(b) requests for injunctive relief with other (sometimes creative) statutory requests for money.

Given the Commission’s newfound interest in exploring non-13(b) statutory avenues to obtain monetary remedies, we have expanded our Post-AMG chart to include a wider swath of ongoing cases in which the FTC is attempting to collect money absent the use of 13(b). The latest version of our expanded chart follows.


Continue Reading Post-AMG Scorecard: The FTC Pivots to Other Statutory Bases for Monetary Relief

Earlier today, the FTC issued a policy statement warning marketers against using “dark patterns” to trick or trap consumers into subscription services. The statement is primarily intended to assist marketers by providing guidance on the FTC’s interpretation of existing law as it applies to various types of “negative option” programs, including automatic renewals, subscriptions, and