Data privacy expert confirmed to Federal Trade Commission

On Wednesday, the Senate voted to confirm Alvaro Bedoya as a Commissioner of the Federal Trade Commission. Bedoya's confirmation creates a Democratic majority on the Commission, and paves the way for continued expansion of potential theories of harm in both antitrust and consumer protection investigations.

As we previously noted, Bedoya is a professor at Georgetown Law and is the Founding Director of the law school's Center on Privacy & Technology. Bedoya previously served as Chief Counsel of the U.S. Senate Judiciary Subcommittee on Privacy, Technology and the Law and has written extensively about the racially disparate effects of surveillance and data collection. His 2016 paper about police face recognition led to a series of House oversight hearings and the National Institute of Standards & Technology's first ever comprehensive bias audit. 

Professor Bedoya's confirmation returns the Commission to a full Commissioner slate and a Democratic majority. The Commission had been operating at a 2-2 tie since the departure of Commissioner Chopra on October 12, 2021. The return of a Democratic majority will enable the Commission to bring new cases with novel theories. FTC Chair Lina Khan has openly and often spoken about using antitrust laws to challenge a wider range of conduct than the Commission has challenged in the past. Since Khan's nomination, the FTC has explored new theories of antitrust harm in document and information requests and other investigations, but it has not based many enforcement actions on these theories. After the 2-2 gridlock is broken, the Commission will be more likely to file cases under new theories of harm. In addition, Bedoya's expertise in data privacy may further expand potential theories of antitrust harm relating to privacy and data rights. 

Bedoya's nomination also signifies a potential shift in focus to privacy as a consumer protection issue. On September 14, the FTC authorized eight new compulsory process resolutions including a resolution to use any and all compulsory process available to investigate bias in algorithms and biometrics. The FTC had previously warned that algorithms that lead to discriminatory outcomes may violate Section 5 of the FTC Act. Bedoya's confirmation may empower the Commission to further pursue a commitment to this position.