Cross-sector FTC Privacy Protection Flashcards
5-7 questions
Define:
Section 5 of FTC Act
unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful
FTC authority over information and privacy security
established by FTC v. Wyndham (2015) and FTC v. LabMD (2018)
FTC administrative enforcement
- relies on Section 5(1)
- FTC issues a complaint and then determines via an administrative proceeding whether a violation has occurred; and if a violation is found, FTC issues a cease-and-desist order and can pursue civil penalties if company subsequently violates the order
FTC judicial enforcement
- relies on Section 13(b)
- used by FTC to seek “equitable money relief” such as restitution and disgorgement without first issuing a final cease-and-desist order
Define:
restitution
recouping money losses of consumers
Define:
disgorgement
requiring companies to repay profits from wrongful conduct
FTC has general authority to…
issue regulations under FTC Act
How does the FTC issue regulations?
- must comply with procedures under Section 18 of the FTC Act aka Magnuson-Moss Warranty Federal Trade Commission Improvements Act of 1975 (“Magnuson-Moss”)
- can promulgate a trade rule regulation, which defines an act or a practice as unfair or deceptive “only where it has reason to believe that the unfair or deceptive acts of practices which are subject of the proposed rulemaking are prevalent”
- FTC must establish the prevalence of acts or practices; how the acts or practices are unfair or deceptive; and the economic effect of the rule, including on consumers and small businesses
What is the effect of West Virginia v. EPA (2022)?
- could narrow breadth of rules that FTC can enact in future
- case evinced a shift from courts deferring to agency rules as appropriate to an expectation that courts would review agency rules to determine compliance based on the “major questions doctrine”
- major questions doctrine restricts the authority of federal agencies to issue substantial regulations without precise directions from Congress
typical FTC enforcement process
- claim that company has committed an unfair or deceptive practice or has violated a specific consumer protection law
- FTC has broad investigative authority, including authority to subpoena witnesses, demand civil investigation, and require businesses to submit written reports under oath
- commission may initiate an enforcement action and issue a complaint, and an administrative trial can proceed before an ALJ
- if violation is found, ALJ can enjoin company from continuing the practices that caused the violation
- decision of ALJ can be appealed to five commissioners, and that decision can be appealed to federal court
- although FTC lacks authority to assess civil penalties, if an FTC ruling is ignored the FTC can seek civil penalties in federal court of up to $50,120 per violation and can seek compensation for those harmed by the unfair or deceptive practices
Define:
consent decree
- respondent does not admit fault but promises to change its practices and avoids further litigation on the issue
- respondent often required to maintain proof of compliance and must inform FTC if changes will affect ability to adhere to terms
What happens if you violate a consent decree?
any violation of that decree can lead, following an FTC investigation, to enforcement in federal court, including civil penalties (or injunctions or other forms of relief)
What does the FTC’s Enforcement Division do?
monitors and litigates violations of consent decrees in cooperation with the DOJ
incentives to negotiate consent decree (on both sides)
- company avoids prolonged trial and negative ongoing publicity, and avoids having details of its business exposed to public
- FTC achieves consent decree that enforces good privacy and security practices, avoids expense and delay of trial, and gains enforcement advantage because monetary fines are much easier to assess in federal court if a company violates a consent decree
Define:
deceptive practice
must involve a material statement or omission that is likely to mislead consumers who are acting reasonably under the circumstances