McSweeny, Ohlhausen Concerned on Net Neutrality Order Implications for FTC
FTC members of both parties had concerns about the FCC net neutrality order, unless the FTC's common-carrier exemption is removed by Congress. Terrell McSweeny and Maureen Ohlhausen's interview to be televised this weekend on C-SPAN indicated they have different concerns over the order. But they share a fear that the FTC will lose some authority because it's barred from acting against common carriers. The FCC net neutrality order deems broadband service a Communications Act Title II common-carrier service.
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The FCC reclassification order left open the possibility the agency could consider edge providers to be common carriers, which would impinge even more on the FTC’s authority, Ohlhausen said. This isn’t a turf war, it’s just about the FTC being able to do its job, McSweeny said. In addition to common carriers, the FTC doesn’t have jurisdiction over nonprofits and insurance companies, the commissioners said. Their interview will appear on The Communicators and on C-SPAN's website.
Now the sole Republican FTC member, Ohlhausen said she hopes a new Republican commissioner will be appointed soon but understands “Congress has a lot on its plate.” The White House hasn't yet publicly said that it has settled on a replacement for Joshua Wright, who recently left the FTC. While the commission decides the vast majority of cases on a bipartisan consensus, a partisan divide occurs in some cases, like the Nomi Technologies case (see 1509030049">1509030049).
Ohlhausen dissented from the commission’s order against Nomi, saying punishing the company for improper opt outs would discourage other companies from offering protections to consumers. McSweeny said she supported the order because companies need to offer true promises, especially as technology surrounds all of people's lives.
With privacy in the U.S. regulated by a sector-based approach, McSweeny said that there is a need for Congress to clarify data breach and data security law. It should also determine whether there is a need for federal student privacy legislation, continue progress on the administration's Privacy Bill of Rights, and have a policy discussion to codify what rights consumers have to notice and choice when information is being collected, she added. Pointing to the First Amendment, McSweeny said she didn’t think having a law similar to Europe’s right to be forgotten is necessary in the U.S.
Ohlhausen agreed that Congress should adopt breach notification and data security legislation, reasoning that a patchwork of state laws has become problematic for consumers and businesses, and that the right to be forgotten wasn’t a necessary privacy law in the U.S. Instead of restricting people’s right to know information, the question should be how to restrict the use of information to harm others, Ohlhausen said.