Consumers Are Poised to Gain an Advocate for Privacy Rights at the Federal Trade Commission

The Biden administration has sent a strong signal it is serious about regulating technology behemoths with its latest pick for Commissioner of the Federal Trade Commission, Alvaro Bedoya—a leading privacy advocate.

On September 13, 2021, President Biden nominated Bedoya—Visiting Professor of Law and Founding Director of the Center on Privacy and Technology at Georgetown University Law School—for the final open slot at the FTC.  Departing Commissioner Rohit Chopra awaits Senate confirmation to become the director of the Consumer Financial Protection Bureau.

Bedoya’s expertise lies in surveillance and data security.  His experience would uniquely position him among the Commissioners to lead federal enforcement efforts against privacy lapses by Big Tech.  By way of example:

• He served as Chief Counsel of the U.S. Senate Judiciary Subcommittee on Privacy, Technology and the Law, leading oversight on mobile location privacy and biometrics, and drafting portions of the bipartisan NSA reform law, the USA FREEDOM Act, among other accomplishments.
• He co-authored The Perpetual Line-Up: Unregulated Police Face Recognition in America, which contends that facial recognition applications—which have probably already captured the faces of a majority of Americans—are unregulated and plagued by race and gender bias. This research led to bipartisan House Oversight hearings and the first-ever comprehensive bias audit of this technology by the National Institute of Standards and Technology.  It also led to several laws, including Section 1919 of the FAA Reauthorization Act of 2018, which requires bias testing of airport face recognition systems.
• He has testified before Congress and state legislatures, and his writings have appeared in several national news outlets. His article Privacy as Civil Right, 50 New Mexico Law Review 301 (2020), is featured in the seventh edition of Information Privacy Law (Solove & Schwartz, eds.), a leading privacy casebook, as well as in four other casebooks.
• Professor Bedoya also directed Georgetown University Law’s Federal Legislation Clinic from 2018 to 2020 with a focus on immigrant surveillance. He developed a course that paired Georgetown Law students with MIT engineering students to build policy solutions to technology issues, taught practicums on surveillance and civil rights, and led a class on the law and history of the disparate impact of surveillance.

As a Peruvian immigrant, Bedoya would be one of the few immigrants to sit on the Commission, adding diversity to the historically non-diverse agency.  Moreover, his demonstrated commitment to Civil Rights and communities of color will infuse the FTC with invaluable experience in tackling issues affecting underrepresented groups.  This experience will be instrumental, for example, in establishing oversight of public and corporate surveillance of communities of color, immigrants, religious minorities, as well as gig economy and blue collar workers.  His transnational perspective will be particularly useful in light of increased international regulation of American Big Tech through such initiatives as the European Union’s General Data Protection Regulation.

If confirmed, Commissioner Bedoya would be faced with addressing several federal priorities at the intersection of privacy and competition law, including:

• Reconciling tensions between privacy law and antitrust enforcement of digital platforms, including those found in recent cases against tech giants, who are being sued on the one hand, for conduct that undermines privacy concerns, and on the other, for conduct that increases privacy protections.
• Examining acquisitions by trillion-dollar tech companies, who have devoted significant resources to acquiring a panoply of start-ups and patents. (FTC Chair Lina Khan has already recommended looking at the Commission’s merger thresholds for disclosing these acquisitions.)
• Investigating the human rights risks posed by Artificial Intelligence, such as discriminatory profiling, as outlined in a report by the U.N. Human Rights Counsel.

It will be a significant challenge for the FTC to regulate Big Tech, considering the sector’s vast financial resources.  But Democrats in the House Energy and Commerce Committee are determined to address this problem as well, with a proposal to endow the Commission with a $1 billion funding boost—representing 30% of the FTC’s current budget—to support a new privacy bureau “dedicated to stopping unfair and deceptive acts and practices related to privacy violations, data security incidents, identity theft, and other data abuses.”

If approved, this boost in resources at the FTC might be just what a newly appointed Commissioner Bedoya needs to tackle the Biden administration’s priorities at the intersection of privacy and competition law.

Edited by Gary J. Malone

Tagged in: Antitrust Enforcement, Antitrust Litigation,