At a recent event, Federal Trade Commission Acting Chair Maureen K. Ohlhausen shared her plans for the agency, which likely left advertisers breathing a sigh of relief.
With the majority of the FTC currently vacant—Ohlhausen is joined only by Commissioner Terrell McSweeny and accompanied by three empty seats—she decided to take the time to re-evaluate the FTC’s priorities and how it calculates its own success. “Having a lot of cases is one measure,” she told attendees of the International Association of Privacy Professionals’ Global Privacy Summit. “But in a way, that’s like a doctor saying, ‘I performed a lot of operations so I’m successful, but I didn’t do a lot of preventative care.’”
To that end, Ohlhausen said the agency will focus on consumer education. “We’re better off if consumers know how to protect themselves,” she said. “If businesses who want to obey the rules know the rules and meet them, consumers are better off, business is better off, and we can use our limited resources on really bad actors.”
That focus—on actual consumer harm—has been Ohlhausen’s mantra since she was designated acting chair of the FTC in January. For example, when questioned whether an actual data breach must occur to trigger an agency action challenging a company’s cybersecurity, Ohlhausen reiterated her stance. “We need to be sure it causes or is likely to cause harm,” she explained. “That’s a statutory requirement. We should be directing our resources where there’s likely injury.”
Ohlhausen has also directed her attention to “process reform,” particularly in the area of civil investigative demands, a tool to collect information from a business when the agency suspects it may have engaged in deceptive or unreasonable acts. As the FTC’s core mission is to protect consumers without unduly affecting business, process reform ensures the proper balance, she explained. “We want to protect consumers and we want to maintain competition, but we also have to be sensitive to burdens on legitimate business,” Ohlhausen said, expressing concern about the impact of CIDs.
“Are our requests for information more burdensome than they need to be? Can we streamline some of these things?” she asked, noting that many cases close before an enforcement action is necessary. Other items on the process reform agenda include identifying unnecessary regulations no longer in the public interest, reviewing dockets to close older investigations, and taking a closer look at closed data security investigations to extract lessons for improved guidance and transparency in that ecosystem.
The acting chair also weighed in on the rescission of the Federal Communications Commission’s privacy rules, which she argued will prove beneficial for competition because different rules will not apply to different wireless competitors. “It doesn’t make sense, carving out ISPs as specific providers, because there are more competitors in this ecosystem that have fewer competitors, and the FCC’s rules don’t apply to them,” Ohlhausen said. “To say we’re going to put these [protective] layers on this one portion … is giving consumers a false sense of protection.”
She expressed support for the FTC regaining authority over common carriers, which she believes would create a level playing field. “We do have the expertise; we have been very aggressive in enforcement and staying ahead in these issues,” Ohlhausen said. “I think the FTC has shown its capabilities here, and I’d like to see us continue in this space.”
Why it matters: Acting Chair Ohlhausen’s most recent remarks emphasize her position since taking on the leadership role at the agency in January: a focus on actual, concrete harm as the basis for an enforcement action, as well as consideration of the burdens placed on businesses by the FTC.