D. Rockwell Brower of Polsinelli PC writes:
A leadership change at the Federal Trade Commission (FTC) may spell relief for U.S. businesses grappling with the agency’s enforcement measures amidst an increasingly dangerous cybersecurity landscape. On January 25, 2017, President Donald Trump named Commissioner Maureen Ohlhausen acting Chairman of the FTC. Ohlhausen has served at the agency in various capacities for more than a decade, and is now the lone Republican remaining on what will soon be a two-member commission, after former-Chair Edith Ramirez’s announced resignation. When Ramirez leaves the agency on February 10th, only Ohlhausen and Commissioner Terrell McSweeney (Democrat) will remain at the helm with three vacant commissioner seats for President Trump to appoint.
Ohlhausen’s appointment may signal a shift in the FTC’s enforcement philosophy and priorities, particularly as it pertains to privacy and data security regulations. “She will hit the ground running and begin right away to change the agency’s priorities so that they align more closely with her own priorities,” former FTC Commissioner Julie Brill said. “In the cybersecurity and privacy realm, I believe acting Chair Ohlhausen will be more exacting in her standards for enforcement actions, ensuring that any case that moves forward is founded on demonstrable and tangible harms.”
Read more on The National Law Review.
“Demonstrable and tangible harms?” Isn’t that exactly what the FTC failed to demonstrate in the LabMD case? And aren’t they still arguing at the Eleventh Circuit that they can enforce even in the absence of tangible harms?