The long-awaited arrival of Commissioner Bedoya restores a Democratic majority that Speaker Lina Khan lost in October 2021 when Commissioner Rohit Chopra left the FTC to lead the Consumer Financial Protection Bureau. With the support of Commissioner Bedoya and Democrat Commissioner Rebecca Kelly Slaughter, President Khan is now expected to move forward on an ambitious agenda. Areas within the privacy space where we expect to see more activity include:

• Confidentiality, aka “commercial surveillance”, rulemaking. In December 2021, the FTC reported that he was considering initiating commercial regulation of what he called “commercial surveillance,” under Section 18 of the FTC Act, to “reduce lax security practices, limit harm to life privacy and to ensure that algorithmic decision-making does not result in unlawful discrimination”. This would be an unprecedented proceeding that could affect not only players in the technology sector, but all companies subject to the authority of the FTC. The FTC faces significant substantive and procedural hurdles when seeking to enact and enforce a Section 18 confidentiality rule, but with the arrival of Commissioner Bedoya, it is now ready to give to this effort a complete judicial press.
• Confidentiality/competition intersection. The Khan chair has publicly declared that she would like to see the agency take an “interdisciplinary” approach to competition and privacy, i.e. focus on the impact of data practices engaged in by “dominant companies as well as intermediate”. Although less is known about Commissioner Bedoya’s views on competition than on privacy issues, if he takes this approach, it could be reflected in the agency’s choice of enforcement actions.
• Algorithmic discrimination and civil rights issues. President Khan and Commissioner Slaughter recently published a statement expressing their view that disparate impact discrimination can be an unfair practice in certain circumstances, and Commissioner Bedoya’s scholarly work on the intersection of civil rights and digital technologies is well known. We could see even more resources devoted to these issues in the FTC’s enforcement and policy work.
• Health information. The FTC has long been concerned about the proliferation of mobile health apps that aren’t subject to HIPAA. In September 2021, it sought to address this gap in the law with a thorough reading of its longstanding and little-used health injury notification rule in a policy statement adopted by 3 votes against 2. With a Democratic majority, we could witness attempts to apply the new reading of the rule.

With the FTC restored to full strength, we expect to see Commissioner Bedoya play an important privacy role in an increasingly active FTC.