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Client Alert: New FTC Acting Chairman Signals More Pro-Business Approach

February 8, 2017

By Jennifer Van Doren

Following President Trump’s designation of Maureen J. Ohlhausen as Acting Chairman of the Federal Trade Commission, many businesses are breathing a hopeful sigh of relief.  Ohlhausen has been a Commissioner since April 4, 2012, in a term that ends in September 2018.

Since her designation as Acting Chairman, Ohlhausen has signaled that she will take a more pro-business approach, by focusing more on true fraud cases and requiring a showing of “substantial injury” to consumers before penalizing businesses for their advertising and use of consumer data.  Recently, in the Concurring Statement of Acting Chairman Maureen K. Ohlhausen in the Matter of Vizio, Inc., Ohlhausen urged the FTC not to treat individual television viewing activity as “sensitive information” subject to higher protection and use restrictions and to “examine more rigorously” what actions constitute “substantial injury” in the context of using consumer data.  She then promised to launch an effort to examine the substantial injury standard further.

This approach is consistent with Ohlhausen’s position and statements in other contexts.  Ohlhausen has advocated for a “harms based” approach to privacy, where businesses are not unduly penalized for advertising or using consumer data where no substantial injury to consumers is shown.  At the same time, Ohlhausen has promised to give businesses more clarity on what “reasonable security” efforts they should be expected to take with respect to consumer data.