New FTC Nominees Lack Consumer Privacy, Security Experience

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By George Lynch

Four FTC commissioners nominated by President Donald Trump are a step closer to filling out the top ranks of the agency, although none has an extensive consumer data privacy and security background.

The Federal Trade Commission professional staff has a wealth of privacy and security experience upon which new commissioners can draw. Two of the nominees bring some direct FTC experience with them, and all have government experience. They should be able to easily expand their expertise to handle their roles as consumer privacy and security regulators, privacy professionals told Bloomberg Law.

The Trump Administration Jan. 25 sent the Senate a package of four nominations to fill vacancies on the FTC. Trump nominated Noah Phillips, chief counsel to Senate Majority Whip John Cornyn (R-Texas) on the Senate Judiciary Committee, which oversees the FTC, among other federal agencies. He also nominated Christine Wilson, senior vice president for regulatory affairs at Delta Airlines. Wilson served 2001 to 2004 as chief of staff to former FTC Chairman Timothy Muris. If approved by the Senate, Phillips and Wilson would serve as Republican commissioners.

Also on Jan. 25, the administration sent to the Senate the nominations of Republican antitrust attorney Joseph Simons to be FTC chairman and Democrat Rohit Chopra as a commissioner. Simons served 2001 to 2003 as director of the FTC’s Bureau of Competition and Chopra served 2010 to 2015 as assistant director of the Consumer Financial Protection Bureau, where he oversaw the agency’s agenda on students and young consumers. The White House announced its intention to nominate them to the FTC in October, but they could not be considered by the Senate until Trump sent over the nominations.

None of the nominees has the level of privacy experience that acting Chairman Maureen Ohlhausen (R) brought to the commission. Ohlhausen was a partner at Wilkinson Barker Knauer LLP, where she headed the firm’s FTC practice focusing on privacy, data security, and cybersecurity matters from 2009 to 2012.

The FTC career staff has such substantive expertise with consumer privacy that any commissioner without a privacy background will “have amazing resources to tap into,” Norma Krayem, senior policy advisor at Holland & Knight LLP in Washington and co-chair of the firm’s cybersecurity and privacy team, told Bloomberg Law

Phyllis Marcus, privacy partner at Hunton & Williams LLP in Washington, told Bloomberg Law that the nominees have “significant experience and gravitas.” It isn’t unusual for commissioners to begin with particular backgrounds but expand their portfolios once on the commission, she said. Current Democratic Commissioner Terrell McSweeny, who came onto the commission with antitrust expertise and grew into a strong privacy advocate, is one such example, Marcus said.

The nominations will be considered by the Senate Commerce Committee. “Once these nominees submit all required documentation, the Commerce Committee will move forward with a confirmation hearing,” Frederick Hill, a committee spokesman, told Bloomberg Law.

Entirely New Commission

At full strength, the FTC has five commissioners, including the chairman. No more than three members of the same party may serve.

Trump Jan. 23 announced his intention to nominate Ohlhausen to be a judge on the U.S. Federal Court of Claims.

McSweeny is already serving beyond her term, which expired in September 2017.

With Ohlhausen’s nomination to the Court of Claims and McSweeny already serving over her term, the administration’s batch of nominees will give the FTC an entirely new commission.

It is unique to have a complete turnover, Marcus said.

To contact the reporter on this story: George Lynch in Washington at glynch@bloomberglaw.com

To contact the editor responsible for this story: Donald Aplin at daplin@bloomberglaw.com

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