Earlier this week I testified before the U.S. House Subcommittee on Commerce, Manufacturing, and Trade regarding several proposed FTC reform bills.
You can find my written testimony here. That testimony was drawn from a 100 page report, authored by Berin Szoka and me, entitled “The Federal Trade Commission: Restoring Congressional Oversight of the Second National Legislature — An Analysis of Proposed Legislation.” In the report we assess 9 of the 17 proposed reform bills in great detail, and offer a host of suggested amendments or additional reform proposals that, we believe, would help make the FTC more accountable to the courts. As I discuss in my oral remarks, that judicial oversight was part of the original plan for the Commission, and an essential part of ensuring that its immense discretion is effectively directed toward protecting consumers as technology and society evolve around it.
The report is “Report 2.0” of the FTC: Technology & Reform Project, which was convened by the International Center for Law & Economics and TechFreedom with an inaugural conference in 2013. Report 1.0 lays out some background on the FTC and its institutional dynamics, identifies the areas of possible reform at the agency, and suggests the key questions/issues each of them raises.
The text of my oral remarks follow, or, if you prefer, you can watch them here:
Chairman Burgess, Ranking Member Schakowsky, and Members of the Subcommittee, thank you for the opportunity to appear before you today.
I’m Executive Director of the International Center for Law & Economics, a non-profit, non-partisan research center. I’m a former law professor, I used to work at Microsoft, and I had what a colleague once called the most illustrious FTC career ever — because, at approximately 2 weeks, it was probably the shortest.
I’m not typically one to advocate active engagement by Congress in anything (no offense). But the FTC is different.
Despite Congressional reforms, the FTC remains the closest thing we have to a second national legislature. Its jurisdiction covers nearly every company in America. Section 5, at its heart, runs just 20 words — leaving the Commission enormous discretion to make policy decisions that are essentially legislative.
The courts were supposed to keep the agency on course. But they haven’t. As Former Chairman Muris has written, “the agency has… traditionally been beyond judicial control.”
So it’s up to Congress to monitor the FTC’s processes, and tweak them when the FTC goes off course, which is inevitable.
This isn’t a condemnation of the FTC’s dedicated staff. Rather, this one way ratchet of ever-expanding discretion is simply the nature of the beast.
Yet too many people lionize the status quo. They see any effort to change the agency from the outside as an affront. It’s as if Congress was struck by a bolt of lightning in 1914 and the Perfect Platonic Agency sprang forth.
But in the real world, an agency with massive scope and discretion needs oversight — and feedback on how its legal doctrines evolve.
So why don’t the courts play that role? Companies essentially always settle with the FTC because of its exceptionally broad investigatory powers, its relatively weak standard for voting out complaints, and the fact that those decisions effectively aren’t reviewable in federal court.
Then there’s the fact that the FTC sits in judgment of its own prosecutions. So even if a company doesn’t settle and actually wins before the ALJ, FTC staff still wins 100% of the time before the full Commission.
Able though FTC staffers are, this can’t be from sheer skill alone.
Whether by design or by neglect, the FTC has become, as Chairman Muris again described it, “a largely unconstrained agency.”
Please understand: I say this out of love. To paraphrase Churchill, the FTC is the “worst form of regulatory agency — except for all the others.”
Eventually Congress had to course-correct the agency — to fix the disconnect and to apply its own pressure to refocus Section 5 doctrine.
So a heavily Democratic Congress pressured the Commission to adopt the Unfairness Policy Statement in 1980. The FTC promised to restrain itself by balancing the perceived benefits of its unfairness actions against the costs, and not acting when injury is insignificant or consumers could have reasonably avoided injury on their own. It is, inherently, an economic calculus.
But while the Commission pays lip service to the test, you’d be hard-pressed to identify how (or whether) it’s implemented it in practice. Meanwhile, the agency has essentially nullified the “materiality” requirement that it volunteered in its 1983 Deception Policy Statement.
Worst of all, Congress failed to anticipate that the FTC would resume exercising its vast discretion through what it now proudly calls its “common law of consent decrees” in data security cases.
Combined with a flurry of recommended best practices in reports that function as quasi-rulemakings, these settlements have enabled the FTC to circumvent both Congressional rulemaking reforms and meaningful oversight by the courts.
The FTC’s data security settlements aren’t an evolving common law. They’re a static statement of “reasonable” practices, repeated about 55 times over the past 14 years. At this point, it’s reasonable to assume that they apply to all circumstances — much like a rule (which is, more or less, the opposite of the common law).
Congressman Pompeo’s SHIELD Act would help curtail this practice, especially if amended to include consent orders and reports. It would also help focus the Commission on the actual elements of the Unfairness Policy Statement — which should be codified through Congressman Mullins’ SURE Act.
Significantly, only one data security case has actually come before an Article III court. The FTC trumpets Wyndham as an out-and-out win. But it wasn’t. In fact, the court agreed with Wyndham on the crucial point that prior consent orders were of little use in trying to understand the requirements of Section 5.
More recently the FTC suffered another rebuke. While it won its product design suit against Amazon, the Court rejected the Commission’s “fencing in” request to permanently hover over the company and micromanage practices that Amazon had already ended.
As the FTC grapples with such cutting-edge legal issues, it’s drifting away from the balance it promised Congress.
But Congress can’t fix these problems simply by telling the FTC to take its bedrock policy statements more seriously. Instead it must regularly reassess the process that’s allowed the FTC to avoid meaningful judicial scrutiny. The FTC requires significant course correction if its model is to move closer to a true “common law.”