In the United States, the Federal Trade Commission has long been the trend-setter for what constitutes reasonable behavior in protecting data privacy. It does so through its broad Section 5 authority, which federal courts have held allows the FTC to regulate the data privacy space, but the breadth of which is under challenge. With news that the Trump Administration has nominated a slate of four new Commissioners to head the agency — among them, anti-trust lawyers with private practice backgrounds — privacy enforcement at the federal level seems poised to change. Unfortunately, predictions remain difficult, especially about the future (and especially with regard to privacy): these nominees do not have a long privacy track record, affording us few tea leaves to read. I spoke with Law360 about what we might expect; you can read my comments here.
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