Trump admin’s removal of Democratic FTC commissioners could shift its privacy efforts

The Trump administration’s removal of two Democratic Federal Trade Commission officials on Tuesday could have deep implications for how the agency regulates big tech and safeguards consumer privacy, experts say.

The removed commissioners, Alvaro Bedoya and Rebecca Kelly Slaughter, have condemned the firings, which breaks a precedent set in a 1935 Supreme Court ruling that held that FTC commissioners cannot be removed by the president for political reasons or based on policy decisions. Bedoya and Slaughter say they plan to challenge the move in court.

While they would have been in the minority on the new commission run by Trump-appointed chair Andrew Ferguson, Bedoya and Slaughter have independently made strong public statements on the need to aggressively regulate location data brokers, facial recognition technology, workplace surveillance and artificial intelligence as a whole.

Blog posts criticizing big tech were removed from the agency’s website on Tuesday, a move which John Davisson, the director of litigation at the Electronic Privacy Information Center, said cannot be coincidental.

“That combined with the illegal removal of commissioners, who have been extremely effective regulators and critics of big tech, certainly points to the commission laying off of regulating the companies that are engaged in these harmful, large scale personal data abuses,” Davisson said. 

Nonetheless, Ferguson, who began his work at the FTC in April, has voted in favor of every privacy-related enforcement since then, a fact Davisson called significant.

Ferguson also has criticized data brokers in the past and publicly worried about threats to privacy. However, he has simultaneously loudly rebuked his own agency, saying in a recent memo to Trump that he intended to end “novel and legally dubious consumer protection cases.”

Ferguson and fellow Republican commissioner Melissa Holyoak have frequently attacked the commission for overstepping its Congressional authority, including on privacy enforcements.

In January, Ferguson abruptly cut off the public’s ability to comment on surveillance pricing, a practice under which corporations use algorithms and sensitive personal data to set different prices depending on a consumer’s profile, including their geolocation. Ferguson had previously  scolded the FTC for issuing a report criticizing the practice.

The commission’s work regulating data brokers will likely be curtailed under Ferguson’s leadership, said Eric Null, co-director of the privacy and data project at the Center for Democracy and Technology.

Null pointed to several data broker cases the FTC has recently enforced and a pending lawsuit against the location data broker Kochava. He also underscored that the agency recently settled a joint case against Equifax over its 2017 breach that exposed the names, addresses, Social Security numbers and other information of 147 million people. 

“There will now be few, if any, voices at the commission level fighting to take more of these cases,” Null said. “These firings will simply make the data broker industry relax, as they no longer have to worry that their anti-consumer practices will be under fire."

It is unclear if Trump will attempt to replace Bedoya and Slaughter with Democrats should a court not intervene. Ferguson appeared on a podcast Monday saying he thinks it benefits the commission to have both parties represented in its ranks.

“If you have an agency that is exceeding the law, abusing the companies that [it] purports to regulate, it's helpful for markets, for courts, for litigants, for government transparency to have people in the other party pointing this out and saying it in dissents,” Ferguson said.

Congressional Democrats expressed alarm over the firings. Sen. Elizabeth Warren (D-MA) released a statement saying Trump “illegally fired two independent commissioners at the FTC who fight big corporations that abuse consumers and workers.” 

The removals also will likely “destabilize” the commission due to the vacant seats, the likely departure of Slaughter and Bedoya’s staffers and the prospect of litigation, said Matt Schwartz, a policy analyst at Consumer Reports.