Hints of a Narrowing of the FTC’s Section 5 Authority Under a Trump Presidency

Helen P. O’Reilly and Michael F. Buchanan of Patterson Belknap write:

The transition of power from President Barack Obama to President-Elect Donald Trump is underway. Although President-Elect Trump did not lay out specific policy prescriptions about data privacy or consumer protection during his candidacy, his recent choice of Dr. Joshua D. Wright to lead transition efforts at the Federal Trade Commission provides some hints as to the direction the agency may take under a Trump administration.

Read more on Data Security Law Blog, where they provide a nice recap of Wright’s background and views on some issues.

President-Elect Trump’s appointment of Wright is actually an appointment that delights me, as Wright often attempted to provide what I see as some badly needed reining-in of the FTC and an emphasis on providing more guidance as to the scope of the FTC’s authority to enforce “unfair” and “deceptive” business practices. As someone who has been arguing for years that the FTC has failed to provide sufficient guidance and notice, his was a welcome voice, and I was saddened that he resigned as a commissioner. Although I do not want to see businesses given more free rein to collect and use consumer information without consent and adequate data security, I continue to think that the FTC has to be clearer about when it is likely to pursue enforcement action. In a world where imperfect data security and breaches are the norm and not the exception, what, these days, should constitute “reasonable” security?