Karl Herchenroeder

The “past few weeks” have seen a “dramatic drop” in robocall reports FTC Consumer Protection Bureau Director Andrew Smith said Monday, citing COVID-19’s economic disruption as one potential reason. Many robocalls originate in India, and stay-at-home orders might be affecting the volume, he told the American Bar Association, noting the agency’s recent warning letters with the FCC against VoIP service providers (see 2004030052). When the FTC acts against VoIP providers, it sees measurable drops in robocall volume, which shows existing laws are helping, he said.

The Patent and Trademark Office’s decision to hear an inter partes review challenge isn’t reviewable on appeal, the Supreme Court ruled 7-2 Monday, siding with PTO. Justices Neil Gorsuch and Sonia Sotomayor dissented in Thryv v. Click-to-Call (18-916). Click-to-Call argued that courts should be able to review circumstances involving time limits for certain patent reviews. The case pertains to 35 U.S.C. §315(b). “Allowing §315(b) appeals would waste resources" spent on resolving patentability and would leave “bad patents enforceable,” Justice Ruth Bader Ginsburg wrote for the majority. Gorsuch said the decision “carries us another step down the road of ceding core judicial powers to agency officials and leaving the disposition of private rights and liberties to bureaucratic mercy.” The court let the agency override one of the America Invents Act’s “express limits on agency authority,” Click-to-Call attorney Daniel Geyser emailed. “It’s now a question for Congress to restore the judiciary’s traditional role in reviewing agency action and saying what the law is.”

There’s wide consensus COVID-19 tracing apps should be voluntary, and developers should follow guidelines for collecting, retaining and deleting data. The American Civil Liberties Union (see 2004160047) and the European Commission released similar proposals Thursday for protecting data. Privacy attorneys we interviewed largely agreed.

Warning letters are the “most rapid and efficient means” for addressing bogus online claims about COVID-19-related products, FTC Chairman Joe Simons wrote, in documents we obtained through the Freedom of Information Act. Several members of Congress wrote in March asking how the agency is addressing the flood of deceptive and fraudulent activity related to the pandemic. Sen. Richard Blumenthal, D-Conn., asked about warning letters from the FTC and Food and Drug Administration.

The FTC created an agency-wide pandemic response team and a pandemic-specific plan to address evolving COVID-19 issues, according to documents we obtained through a Freedom of Information Act request. Chairman Joe Simons declined to share the plan's annex with Sen. Maria Cantwell, D-Wash., calling it “nonpublic” in a March 13 letter to the Senate Commerce Committee ranking member. Federal guidance on COVID-19 hasn’t "always kept up with the most pressing concerns expressed by FTC staff,” Simons wrote. He recommended a “timely and consolidated” source or site for federal agencies to plan for and “adapt to quickly changing circumstances.”

Some antitrust litigation is slowing down due to COVID-19, but antitrust enforcers are “very much” still investigating, FTC Commissioner Noah Phillips said Tuesday. He told a Politico webcast that merger and acquisitions filings have decreased. He said the agency is handling the pandemic “as best we can,” moving its Hart-Rodino-Scott M&A reviews to an online program (see 2003270059). The agency is “steady as she goes,” he said, noting a joint statement with DOJ warning of criminal liability for antitrust enforcement: “We’re very much still here.”

The Trump administration’s reported plan to create a COVID-19 data surveillance program with healthcare and tech companies lacks transparency, Democratic lawmakers wrote the White House Friday. They noted the industry's “checkered history” protecting patient and user privacy. Some stakeholders also raised concerns.

Big data could be used to track and curtail COVID-19, Senate Commerce Committee leaders from both parties said Thursday, noting the need to scrutinize pandemic data collection (see 2004080068). Lack of a federal privacy law is undermining efforts, witnesses told the committee during a "paper hearing." Groups highlighted potential data pitfalls that need to be avoided. There was no real-time testimony, but documents were exchanged.

Expect the Senate Commerce Committee to scrutinize industry and government data sharing as the two sides collaborate on COVID-19 response, various groups said in advance of Thursday’s paper hearing (see 2004030076). Democrats will want to know what data is shared with government and how people are being tracked, Interactive Advertising Bureau Executive Vice President-Public Policy Dave Grimaldi told us Wednesday. He will testify and expects Republicans to explore public safety, economic and consumer benefits.

The U.S. is shifting toward privacy by design and building safeguards into products from the outset rather than into disclosure statements consumers don’t read, FTC Office of Policy Planning Senior Economic and Technology Adviser Liad Wagman told the Technology Policy Institute Tuesday. He noted he was speaking only for himself, which the commission reiterated after his appearance.