Karl Herchenroeder

The FTC’s goal is to reach the “right result” as fast as possible for privacy probes, Chairman Joe Simons testified when pressed by lawmakers for a timeline on the Facebook-Cambridge Analytica investigation. Simons wouldn't address specific cases during the first oversight hearing with all five new commissioners before the Senate Consumer Protection Subcommittee (see 1811230021). Hours earlier Tuesday, Facebook also faced heat at a multicountry hearing in U.K.'s House of Commons (see 1811270014).

Sen. Joe Manchin, D-W.Va., will “most certainly” pursue anti-sex-trafficking-like legislation (see 1806290044) in 2019 holding online platforms accountable for illegal opioid/drug sales, he told us Monday. He originally raised the idea during a hearing with Twitter CEO Jack Dorsey and Facebook Chief Operating Officer Sheryl Sandberg in September (see 1809050057). “They’re putting this junk on the market. They ought to be responsible for it,” Manchin said now. “If you look at all the platforms they’re using to sell this stuff on, don’t you think they should be held accountable? If they’re letting the sales come in illegally on their platforms?” Twitter and Facebook didn't comment.

Consumers have the right to sue for damages involving Apple’s alleged App Store monopoly (see 1811050033), liberal Supreme Court justices suggested Monday during oral argument in Apple v. Robert Pepper, docket 17-204. Conservative justices warned against allowing both developers and consumers to pursue potentially duplicative compensation. But Justice Brett Kavanaugh appeared to side with Pepper.

The Senate Consumer Protection Subcommittee’s FTC oversight hearing Tuesday (see 1811200051) is an opportunity for lawmakers to show bipartisan interest in federal privacy legislation, industry lobbyists told us. With all five commissioners set to testify, it’s also a chance to find out where there's consensus and disagreement within the FTC (see 1811210031), they said.

Despite high-level consensus from the FTC, consumer groups and industry on the need for stronger agency enforcement authorities, it will be very challenging to reach agreement on specifics for a new data privacy bill, tech interests told us.

Department of Homeland Security Secretary Kirstjen Nielsen repeatedly cited the need for “relentless resilience” Friday, lauding launch of the Cybersecurity and Infrastructure Security Agency. President Donald Trump signed legislation Friday restructuring the National Protection and Programs Directorate into CISA, a new DHS agency.

Congress will need to decide how much it’s willing to disrupt competition when crafting privacy legislation, FTC Commissioner Noah Phillips said in an interview for C-SPAN's The Communicators, to have been televised Saturday: While lawmakers want to protect consumers, they must keep in mind that regulatory schemes can harm competition and entrench incumbents. “That may be worth it,” Phillips said. “It may be that the problem we’re solving is such that we’re willing to take a little competition out of the market, but it’s something that we need to keep in mind.” Determining these “value judgments” should come first before deciding whether the FTC needs better privacy authority, he said. “That a firm is large under our law doesn’t necessarily make it a bad firm. It doesn’t make its conduct illegal,” he said. Sometimes, firms illegally protect their position in the market, and that’s something the FTC should monitor, he noted. Phillips warned against using antitrust law to address claims that platforms are favoring content based on ideology, noting he's not sure his agency has a role there.

Senate Minority Leader Chuck Schumer, D-N.Y., was “very aware” the Senate Intelligence Committee “has been relentless” in probing Facebook about foreign meddling, ranking member Mark Warner, D-Va., told reporters Thursday. Warner was asked about a report suggesting Schumer, whose daughter works at Facebook, told Warner to tone down the probe, so Facebook could focus on GOP misinformation and other issues.

Moving privacy legislation will be “right at the top of necessary and achievable goals” in 2019, Sen. Roger Wicker, R-Miss., expected to chair the Senate Commerce Committee, told us. Whether a split Congress improves prospects for achieving compromise on a privacy bill is unclear, said lawmakers from both chambers this week.

Google warned NTIA against requiring user consent in every instance of data collection, saying “processing of personal information is necessary to simply operate a service and is not particularly risky." The agency posted comments Tuesday, including those earlier reported on (see 1811130058 and 1811090050). Always needing consent could “create a complex experience that diverts attention from the most important controls without corresponding benefits,” Google said. Federal privacy legislation should be applied across all industries that collect user data, whether online or offline, Amazon said. The company warned against a patchwork of privacy laws that “diverts significant resources from inventing new features that will delight customers.” Companies should conduct thorough risk assessments of data collection, Microsoft said. If risks to the user from collecting data outweigh potential benefits of processing the data, “processing should only be allowed to proceed with the individual’s informed consent, as provided through an experience that meets the GDPR requirements,” the company said. Congress should craft legislation that would set U.S. standards that supercede EU general data protection regulation standards limiting access to the Whois database (see 1810310008), MPAA told NTIA. Legislators should “ensure that certain basic WHOIS information remains publicly available, and that any information that the GDPR does require to be removed from public access still be available to third parties with legitimate interests through a reasonable, timely, and effective process,” it said. FTC comments to NTIA released Tuesday are encouraging for online platforms like Facebook and Google, Cowen analyst Paul Gallant said Wednesday. The agency’s comments seemed supportive of a flexible approach to data gathering and against any opt-in data consent requirements, he said.