On November 8, 2020, Reed Freeman was quoted in Law360 on the likely impact of President-elect Joe Biden’s administration on the Federal Trade Commission (FTC) and what types of consumer harm will be necessary to support its enforcement actions.
According to the article, at the end of the last Democratic administration, the FTC reached a settlement with Vizio over claims that it tracked users' viewing habits without their consent. The deal drew a rebuke from the Republican Commissioner Maureen Ohlhausen — who had just been elevated to acting chairman following the 2016 election — for broadly defining what qualifies as sensitive information and consumer harm.
"That enforcement action seemed to be a seed that was planted for the next Democratic administration of the FTC to use as a stepping stone to make expansions such as finding that all web-surfing behavior should be treated as sensitive information that requires opt-in consent," said Freeman.
Freeman noted that the current Republican-led FTC is asking more questions, requesting more documents, and holding more hearings during its investigations than he's ever seen, and that he wouldn't expect a commission with Democrats at the helm to "be any less aggressive."
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