Slaughter Pushes Progressive FTC Agenda, Hints at Bipartisanship

Acting FTC Chair Rebecca Kelly Slaughter’s recent direction on privacy and algorithmic bias (see 2102100062) shows she’s going to pursue a vigorous progressive agenda while auditioning for the permanent role, observers told us. She has shown bipartisan agreement on some technical issues, they noted. Since the acting designation, her office has met with consumer advocates about privacy, educational technology, advertising technology and other topics, one advocate said.

Slaughter recently announced staff direction for exploring health apps, contact tracing apps and discriminatory algorithms. Maureen Ohlhausen was similarly active as acting chair January 2017-April 2018 under President Donald Trump, noted TechFreedom Deputy General Counsel Asheesh Agarwal, who previously worked in the FTC Office of Policy Planning. Ohlhausen “put her stamp on the agency while she was there, and I would expect Rebecca to do the same thing.”

Slaughter’s seen as a potential candidate to become President Joe Biden’s permanent chair (see 2101210067). Her Republican colleagues recently opposed her decision to indefinitely suspend granting early termination for Hart-Scott-Rodino merger and acquisition reviews (see 2102090005). Part of it “probably is a little bit of auditioning for the permanent spot,” said Agarwal. “She wants to show the president that she’s somebody that can implement a pretty vigorous, progressive agenda.”

Slaughter “has been a strong ally of civil society folks and has regularly sought folks' input,” said Common Sense Media Director-Platform Accountability and State Advocacy Joe Jerome. Her recent direction to staff “staked out a really broad agenda,” he said: Hopefully the FTC has the resources to “succeed at that.”

Slaughter found common ground with Republican Commissioner Noah Phillips in the commission's recent settlement with Amazon (see 2102020039), noted Public Citizen Competition Policy Advocate Alex Harman. Slaughter and Phillips agreed Congress could improve agency authority by granting direct penalty authority. That could deter “deception aimed at workers in the internet-enabled gig economy and rulemaking authority under the Administrative Procedure Act to address systemic and unfair practices that harm those workers,” they said. When Phillips “says something like this, it really says that things are in terrible shape,” said Harman.

Commissioner Christine Wilson expressed interest last week in a Magnuson-Moss rulemaking on privacy, a proposal Slaughter considered with Democratic Commissioner Rohit Chopra (see 2102120046), who is heading to run another agency if confirmed by the Senate (see personals section, this issue). Wilson's comments show potential bipartisan interest for the concept, but getting into specifics about a privacy rule will likely lead to the same privacy sticking points, said Free State Foundation Senior Fellow Andrew Long: a private right of action and federal preemption. Presumably, Wilson’s actual agenda would clash with Slaughter’s, setting the stage for another impasse, he said. And some Magnuson-Moss proceedings have taken as long as a decade to conclude, he noted: “This doesn’t seem like the vehicle to expedite things.”

A Magnuson-Moss proceeding could be a “crazy procedure,” which is why commissioners haven’t been willing to start one in the past, noted Harman. “They’re limited on the consumer side to do [regulations] at all. They can do regs on competition, but they essentially never have.”

The FTC has somewhat shied away from regulating algorithms because it’s “a little outside their comfort zone,” said Jerome. He noted the agency's authority to police unfair and deceptive actions. “The FTC’s always had plenty of authority if it wants to stretch the bounds,” he said. “We’d like to see more explicit and direct authority provided by Congress.”

Conservatives don’t necessarily pay enough attention to racial disparity, and there’s no reason to “begrudge” Slaughter for exploring that issue, said Agarwal. He noted that her background includes experience as a Capitol Hill staffer, not as an agency attorney like the most recent ex-Chair Joe Simons.