McSweeny Confirmation Seen Possibly Increasing FTC’s Digital Consumer Protection Work
The Senate confirmed Terrell McSweeny as an FTC commissioner by a 95-1 vote Wednesday. That fills the final FTC commissioner seat, which has been vacant since Jon Leibowitz left March 7, 2013. The Democrats now hold a 3-2 majority among FTC commissioners, which has caused some observers to wonder if it will take a more proactive stance on data privacy issues. “This may result in cases or issues being brought up that wouldn’t have been with an evenly split commission, for example in the privacy/data security area,” said Thomas Lenard, president of the tech, telecom and cable industry-backed Technology Policy Institute (TPI), by email.
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The floor vote was months in the works. President Barack Obama said in June he would nominate McSweeny (CD June 24 p12). McSweeny had a Senate Commerce Committee hearing on her nomination in September (CD Sept 12 p1), but her confirmation was held up along with two FCC nominations and delayed because of the government shutdown (CD Oct 3 p9). The FCC nominees eventually cleared the Senate (CD Nov 5 p1), but McSweeny’s nomination continued to languish, despite clearing the Senate Commerce Committee twice. The vote wasn’t close; Sen. David Vitter, R-La., was the only vote against confirmation.
McSweeny has been senior counsel-competition policy in the Justice Department’s Antitrust Division. Former colleagues said her experience there has given her wide-ranging antitrust knowledge she will bring to the FTC (CD June 28 p9). McSweeny also previously worked as a deputy assistant to Obama, as a domestic policy adviser to Vice President Joe Biden and as counsel to the Senate Judiciary Committee for then-Sen. Biden, D-Del.
Privacy is another interest for McSweeny, “particularly children’s privacy and protecting other vulnerable groups such as the elderly,” said Michelle Cohen, an Internet privacy lawyer with the Ifrah law firm. Cohen said the FTC under Obama has already been the most active FTC on privacy issues she has seen in over 20 years, so “tipping the majority will likely continue to push the FTC forward on its enforcement initiatives."
The four sitting FTC commissioners have mostly voted unanimously on issues, with a dissent including one from Commissioner Joshua Wright on the agency’s $32.5 million settlement of a complaint with Apple over in-app purchases without proper consent (CD Jan 16 p12). TPI’s Lenard said McSweeny’s confirmation gives FTC Chairwoman Edith Ramirez “a clear majority at the commission. … Hopefully, this will not result in the FTC taking action where there is no clear evidence of market failure or consumer harm.” Jeff Chester, executive director for digital privacy advocate Center for Digital Democracy, said “the FTC has had a long tradition of working on a bipartisan basis.” But with McSweeny’s confirmation and a Democratic majority, “consumer groups expect … the FTC will further expand its work to protect consumer privacy and [on] digital consumer protection matters,” Chester said.
McSweeny has also “expressed interest and or concerns with data collection,” Cohen said. The FTC has been active through both its research and testimony on the Hill on data broker business practices (CD Dec 20 p6). The release of an FTC report on data brokers has been expected for several months now. “We may see further attention paid to these issues, as well as a continued focus on data security and privacy issues, including children’s privacy,” Cohen said.