Privacy Enforcement Unlikely to Change if FTC’s Ohlhausen Leaves

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By George Lynch

President Donald Trump’s intent to nominate Acting Federal Trade Commission Chairman Maureen Ohlhausen to a federal judgeship is unlikely to have much effect on the commission’s data security practices, a privacy professional told Bloomberg Law.

The Trump administration announced Jan. 23 that it intends to nominate Ohlhausen to the Federal Court of Claims. The FTC now has has two commissioners on the five-member commission.

“The turnover in leadership in the commission likely means there is less privacy expertise at the commissioner level,” Lisa Sotto, privacy partner at Hunton & Williams LLP in New York, told Bloomberg Law. “It does not mean that there is less commitment at the staff however, to pursuing privacy and data security issues,” she said.

“I would be very surprised if acting Chairman Ohlhausen were to leave before a new permanent chairman is confirmed and sworn in,” D. Reed Freeman, privacy and cybersecurity partner at Wilmer Cutler Pickering Hale and Dorr LLP in Washington and former staff attorney for the FTC’s Bureau of Consumer Protection, told Bloomberg Law.

Given the president’s statutory right to to have a Republican majority on the FTC, Freeman said he thought there will be additional nominations before summer.

The administration announced its intention to nominate two other commissioners, Republican Joseph Simons and Democrat Rohit Chopra, in October 2017, but has not formally submitted their names to the Senate for confirmation.

The only other commissioner besides Ohlhausen is Terrell McSweeny, who is serving over her term, which ended in September 2017.

The departure of Ohlhausen before additional commissioners are added or sworn in would leave the FTC with a Democratic majority.

“The President announced his intent to nominate Joseph Simons to be Chair of the FTC and Rohit Chopra to be a Member of the FTC in October,” Lindsay Walters, White House deputy press secretary, told Bloomberg Law. “We expect the Senate to have those official nominations very soon and to confirm them swiftly,” she said.

With assistance from Daniel R. Stoller in Washington

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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