At CES, FTC Commissioner Slaughter Discusses Agency Priorities and Tech Innovation

On Saturday, January 7, Federal Trade Commission (FTC) Commissioner Rebecca Slaughter shared details about FTC priorities and insights on tech innovation during a “Conversations with a Commissioner” program at CES – the tech showcase that kicks off the year. Much of the FTC’s focus in recent years has been on emerging technology, from both a consumer protection and a competition angle. Consistent with that focus, Commissioner Slaughter’s comments highlighted a variety of FTC activity that will directly affect tech, while also ranging from her interests in innovative tech on display to challenges facing working parents.

Below are some highlights from her comments on FTC work as it relates to tech, and what to expect looking forward in 2023:

• The FTC’s privacy rulemaking on ‘commercial surveillance and data security’: The FTC has received thousands of comments in response to its Advance Notice of Proposed Rulemaking and Commissioner Slaughter emphasized the value of making an extensive record in informing policy approaches generally. She stated that the FTC has not prejudged the record, and that any rule the FTC eventually proposes must be grounded in a finding that there are prevalent unfair or deceptive practices that the rule addresses. She also flagged the importance of the data security aspect of a potential rule. Process-wise, the next step in this proceeding would be a Notice of Proposed Rulemaking with specific rule proposals. 
• The FTC’s proposed rule to combat impersonation scams: The FTC has proposed a rule that would prohibit misrepresentation of government and business (including nonprofits). Commissioner Slaughter emphasized the importance of having a rule clearly stating what conduct is prohibited, and the ability of the agency to obtain civil penalties for violations. She noted that she is looking forward to reviewing comments on whether the rule should be expanded to include impersonation of individuals.  
• The FTC’s proposed rule to ban non-compete agreements: The FTC just announced a broad proposal to ban non-compete agreements in the workplace. Commissioner Slaughter framed this as a measure to promote innovation by allowing workers to move from one company to another, and she cited the experience of companies based in California (where non-competes are already restricted under state law). She encouraged participation in what is likely to be a significantly contested rulemaking, and emphasized that she is interested in the “lived experiences” of companies and individuals dealing with non-competes.
• The FTC’s policy statement on enforcing ‘unfair methods of competition’ under the FTC Act: The FTC recently announced an “unfair methods of competition” policy statement. Commissioner Slaughter responded to criticism that the new policy statement redirects the FTC’s from protecting consumers and risks politicizing competition enforcement by focusing on other policy goals; she made a number of points, including that the “unfair methods of competition” section of the FTC Act uses broader language than the antitrust laws, and that the FTC’s focus still remains on promoting “competition.” She also stated that one goal of the new approach is to promote innovation. And she touted the non-compete rulemaking and recent non-compete enforcement actions as examples of the FTC’s broader view of “unfair” methods of competition.

In one of her concluding remarks, Commissioner Slaughter noted that one of her biggest worries is whether the agency had the resources to handle all the cases in front of it, explaining that the FTC still has limited resources despite asking for a larger budget. That concern is not surprising given that the matters listed above are just the tip of the iceberg of the FTC’s ambitious rulemaking and enforcement agenda. The agency is primed for a busy 2023.