| The CFPB will undoubtedly be a more muscular enforcer of financial services entities under the FTC Commissioner nominated to head the agency, including with respect to privacy, data security, and cybersecurity. |
Federal Trade Commission (FTC) Commissioner Rohit Chopra has been tapped by President-elect Joe Biden to lead the agency at which he oversaw the student loan market. Chopra’s nomination must be confirmed by the Senate to be the next Director of the Consumer Financial Protection Bureau (CFPB), an entity that possesses largely unused powers to police the cybersecurity, data security, and privacy practices of broad swaths of the United States (U.S.) economy. And given Chopra’s aggressive advocacy at the FTC to be more active and more muscular, it seems fair to assume the same will be true at the CFPB, awakening an entity that has been largely dormant under the Trump Administration except to the extent it employed a “light regulatory touch.” Of course, Chopra’s expected departure from the FTC likely means Biden will be able to name two FTC nominees in the near future and means he will name Commissioner Rebecca Kelly Slaughter as the next chair as she would be the only currently confirmed Democratic member of the FTC. Whether this designation will be on an acting basis or permanent basis remains to be seen.
In making the announcement, Biden’s transition team highlighted Chopra’s push “for aggressive remedies against lawbreaking companies, especially repeat offenders” and work “to increase scrutiny of dominant technology firms that pose risks to privacy, national security, and fair competition.” The press release added:
Chopra previously served as Assistant Director of the Consumer Financial Protection Bureau, where he led the agency’s efforts on student loans. In 2011, the Secretary of the Treasury appointed him to serve as the CFPB’s Student Loan Ombudsman, a new position established in the financial reform law. He also served as a Special Advisor at the U.S. Department of Education.
In these roles, Chopra led efforts to spur competition in the student loan financing market, develop new tools for students and student loan borrowers to make smarter decisions, and secure hundreds of millions of dollars in refunds for borrowers victimized by unlawful conduct by loan servicers, debt collectors, and for-profit college chains.
Chopra used his powers as an FTC Commissioner to appeal to the majority Republicans to use the agency’s powers more forcefully in combatting privacy, data security, and antitrust abuses. For example, he voted against the FTC’s $5 billion settlement with Facebook and dissented, listing his reasons for breaking with the three Republican Commissioners:
- Facebook’s violations were a direct result of the company’s behavioral advertising business model. The proposed settlement does little to change the business model or practices that led to the recidivism.
- The $5 billion penalty is less than Facebook’s exposure from its illegal conduct, given its financial gains.
- The proposed settlement lets Facebook off the hook for unspecified violations.
- The grant of immunity for Facebook’s officers and directors is a giveaway.
- The case against Facebook is about more than just privacy – it is also about the power to control and manipulate.
More recently, in June 2020, Chopra issued a statement on the a pair of reports required by Congress that articulate his view the FTC “must do more to use our existing authority and resources more effectively:”
1. Inventory and use the rulemaking authorities that Congress has already authorized.
Contrary to what many believe, the FTC has several relevant rulemaking authorities when it comes to data protection, but simply chooses not to use them. Rules do not need to create any new requirements for market participants. In fact, they can simply codify existing legal precedents and enforcement policy to give even more clarity on what the law requires. In addition, when rules are in place, it is much easier for the agency to obtain relief for those who are harmed and seek penalties to deter other bad actors. This can be far more efficient than chasing after the same problems year after year through no-money settlements.
2. Ensure that large firms face the same level of scrutiny we apply to smaller businesses.
To meaningfully deter data protection abuses and other wrongful conduct, the FTC must enforce the law equally. While we have taken a hard line against smaller violators in the data protection sphere, charging individual decisionmakers and wiping out their earnings, I am very concerned that the FTC uses a different standard for larger firms, like in the recent Facebook and YouTube matters.6 This is not only unfair to small firms, but also sends the unfortunate message that the largest corporations can avoid meaningful accountability for abuse and misuse of data.
3. Increase cooperation with state attorneys general and other regulators.
State attorneys general are the country’s front-line watchdogs when it comes to consumer protection, and many states have enacted privacy and data protection laws backed by strong remedial tools, including civil penalties. Partnering more frequently with state enforcers could significantly enhance the Commission’s effectiveness and make better use of taxpayer resources.
4. Hold third-party watchdogs accountable and guard against conflicts of interest.
The FTC typically orders lawbreaking companies to hire a third-party assessor to review privacy and security practices going forward. However, the Commission should not place too much faith in the efficacy of these third parties.
5. Reallocate resources.
While the Commission’s report has rightly noted to Congress that the number of employees working on data protection is inadequate, the Commissioners can vote to reallocate resources from other functions to increase our focus on data protection.
6. Investigate firms comprehensively across the FTC’s mission.
The FTC should use its authority to deter unfair and deceptive conduct in conjunction with our authority to deter unfair methods of competition. However, in the digital economy, the data that companies compete to obtain and utilize is also at the center of significant privacy and data security infractions.
7. Conduct more industry-wide studies under Section 6(b) of the FTC Act.
Surveillance-based advertising is a major driver of data-related abuses, but the Commission has not yet used its authority to compel information from major industry players to study these practices. The Commission should vote to issue orders to study how technology platforms engage in surveillance-based advertising.
Without doubt, Chopra will seek to read and exercise the CFPB’s powers as broadly as possible. For example, in a late October 2020 draft law review article, he and an attorney advisor Samuel Levine argued the FTC would use a dormant power to fill the gap in its enforcement authority left by the cases before the Supreme Court of the United States regarding the FTC’s injunctive powers under Section 13 of the FTC Act. They asserted:
- [T]he agency should resurrect one of the key authorities abandoned in the 1980s: Section 5(m)(1)(B) of the FTC Act, the Penalty Offense Authority. The Penalty Offense Authority is a unique tool in commercial regulation. Typically, first- time offenses involving unfair or deceptive practices do not lead to civil penalties. However, if the Commission formally condemns these practices in a cease-and-desist order, they can become what we call “Penalty Offenses.” Other parties that commit these offenses with knowledge that they have been condemned by the Commission face financial penalties that can add up to a multiple of their illegal profits, rather than a fraction.
- Using this authority, the Commission can substantially increase deterrence and reduce litigation risk by noticing whole industries of Penalty Offenses, exposing violators to significant civil penalties, while helping to ensure fairness for honest firms. This would dramatically improve the FTC’s effectiveness relative to our current approach, which relies almost entirely on Section 13(b) and no-money cease-and-desist orders, even in cases of blatant lawbreaking.
Should the FTC heed Chopra and Levine’s suggestion, the agency could threaten fines in the first instance of Section 5 violations for specific illegal practices the FTC has put regulated entities on notice about.
The CFPB’s organic statute is patterned on the FTC Act, particularly its bar on unfair or deceptive acts or practices (UDAP). However, the “Dodd-Frank Wall Street Reform and Consumer Protection Act” (P.L. 111-203) that created the CFPB provided the agency “may take any action authorized under subtitle E to prevent a covered person or service provider from committing or engaging in an unfair, deceptive, or abusive act or practice (UDAAP) under Federal law in connection with any transaction with a consumer for a consumer financial product or service, or the offering of a consumer financial product or service.” While the CFPB may be limited in its jurisdiction, it has a more expansive regulatory remit that Chopra will almost certainly push to its maximum. Consequently, unfair, deceptive, and abusive practices in the financial services sector could, in his view, include privacy, cybersecurity, and data security practices that heretofore have been allowed by the CFPB could be subject to enforcement action. And while the current CFPB issued a 2020 policy statement regarding how it thinks the agency should use its authority to punish “abusive” practices, Chopra’s team will likely withdraw and rewrite this document.
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