FTC Staff Provide Insights on Ongoing FTC Hearings

December 7, 2018

On Tuesday, December 4, 2018, the Federal Communications Bar Association hosted a brown bag lunch discussion of the FTC’s Hearings on Competition and Consumer Protection in the 21st Century. The discussion featured Maneesha Mithal, Associate Director of the FTC’s Division of Privacy and Identity Protection, and Derek Moore, Attorney Advisor in the FTC’s Office of Policy Planning.

Beyond discussing the general effort that the FTC is undertaking with it wide-ranging hearings, the FTC staff shared informative insights into issues related to privacy, the Internet of Things (IoT), and its interest in communication, information, and media technology networks, among other things.

Why Is the FTC Conducting These Hearings? FTC staff described that, beginning with the 1995 Pitofsky Hearings, the FTC has been on a cadence of performing a wide-ranging look at its mission every 10-12 years. Additionally, this year brought 5 new Commissioners at the same time that issues of competition and consumer protection became a key part of the public’s consciousness. As such, the time is ripe for these hearings.
What Will the FTC Produce as a Result of the Hearings? While this is an open question that will be determined only after the conclusion of the hearings, the FTC is using the 1995 Pitofsky Hearings as a model, so looking to the end product of those hearings may be a useful starting point. Those hearings resulted in 2 reports divided between competition and consumer protection. The FTC staff described that the output from the current hearings will likely fall on the more formal end of the FTC’s work-product spectrum (e.g., a Commission or Staff Report versus a blog post or Staff Perspective). They also noted that changes to enforcement policies and recommendations for industry best practices are all fair game.
What Types of Contributions from Industry Are Helpful to the FTC? As we have heard from others at the FTC, the most useful input is empirical evidence that the FTC does not currently have. In that category, FTC staff described several examples, including empirical evidence that reveals an issue with a particular business practice or industry and descriptive statistics. The FTC is also interested in theories of harm—whether that is a novel theory of harm or a traditional theory of harm applied in a novel way. They also noted the pros and cons of various types of engagement, from in-person meetings to workshop and hearing participation to written comments. With regard to written comments, the FTC staff made clear that there will be an additional opportunity to comment once the hearings have concluded.
Privacy: Privacy dominated the discussion. FTC staff noted that last week, the Commissioners testified before the Senate, calling for both comprehensive data security legislation and privacy legislation to be enforced by the FTC. FTC staff also outlined the vision for the consumer privacy hearing scheduled for February 2019. Staff envisions the privacy hearing to cover three main categories: (1) the current privacy context, which includes the FTC’s past and recent work on privacy issues, as well as recent new regimes such as the California Consumer Privacy Act and the GDPR; (2) practical ways that companies are implementing and scaling privacy practices; and (3) policy-making solutions. During this discussion, FTC staff noted that they are interested in gleaning the positive aspects from a variety of regimes and not simply focusing on the negatives. Additionally, FTC staff pointed to the FTC’s recent comments in response to the NTIA Consumer Privacy RFC as an example of where the FTC is on these issues. Staff pointed to those comments, as well, to illustrate that the FTC’s approach will likely build on—rather than replace—the 2012 FTC Privacy Report.
IoT: When asked what was on the horizon in terms of privacy concerns for the FTC, IoT was mentioned as an example. Staff noted that sensors and the passive collection of personal information is of great interest.
Communication, Information, and Media Technology Networks: When the FTC first announced its hearings, it sought comment on “competition and consumer protection issues in communication, information, and media technology networks.” FTC staff noted that it is actively working to plan a hearing to cover this topic, and that an announcement with additional details can be expected in January or February.