Companies May See More Privacy, Consumer Protection Enforcement Under Biden
FTC is likely to crack down on companies, should it gain Democrat majority

by Tony Flesor
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Gibson Dunn held a webinar last week with firm partners from around the country giving their expectations for a Biden administration in the realm of cyber security and data privacy. And while the administration is likely to pursue enforcement through the Department of Justice, Securities and Exchange Commission and Consumer Financial Protection Bureau, some of the most significant moves for employers could come from the Federal Trade Commission.

The first move to keep an eye on will be in the makeup of the commission itself. The commission has five commissioners and no more than three may come from either political party. The commission currently has a 3-2 split favoring Republicans, though Gibson Dunn partners Ryan Bergsieker, from the Denver office, and Ashley Rogers, from the firm’s Dallas office, say the current commissioner Joseph Simons is expected to step down. Resignation from an appointed position is a common practice when a change in presidential administration occurs.

The commission has been active in recent years with respect to privacy and cybersecurity concerns, with the current Democratic commissioners taking a more vocal position on those issues. Those issues are expected to take a more prominent role within the commission if and when it tips toward Democratic control.

President-elect Joe Biden has already said he favors increasing privacy and cybersecurity regulations, and Vice President-elect Kamala Harris addressed consumer protection and privacy in the tech world while serving as attorney general of California. The state also passed its nation-leader consumer privacy law during her tenure. Should the Biden administration live up to expectations in the consumer protection sphere, the FTC would likely receive increased appropriations, Bergsieker said. That could make the commission more able to take an aggressive position in its caseload.

This complete article appears in the Jan. 11 issue of Law Week Colorado. To read other articles from that issue, order a copy online. Subscribers can request a digital PDF of the issue.