Federal Trade Commission nominee Alvaro Bedoya said if confirmed he would make consumer privacy protections a key focus of his work at the agency and also signaled support for addressing Big Tech regulations.
Bedoya, a privacy advocate nominated to the FTC by President Joe Biden in September, offered insight into his views on a wide range of topics during a Nov. 17 Senate confirmation hearing, including facial recognition and competition matters.
Testifying virtually, Bedoya noted that he has worked on privacy and consumer protection for years and said as part of the FTC, he would push to protect vulnerable Americans from unsafe business practices, such as sales of fake N95 masks and scam health treatments. He also pointed to the need to better protect children online. "We are in a crisis," Bedoya said. "A COVID crisis. A privacy crisis. A crisis for small business."
Bedoya told Sen. Amy Klobuchar, D-Minn., that he supported expanding the FTC's budget, saying the agency's divisions responsible for enforcing antitrust laws and policing privacy violations are dwarfed by their counterparts in many European nations. "I think there is an urgent bipartisan consensus that we need to fix that," Bedoya said.
Bedoya also discussed the potential for new regulatory guardrails around the use of facial recognition technology, a key focus of his academic research. Bedoya told Sen. Deb Fischer, R-Neb., that while he would not call for a ban on the use of facial recognition technology in commercial settings, he would apply greater scrutiny to situations where the collection and use of facial recognition is "opaque" and where citizens cannot consent to the collection of that data.
Regarding competition matters, the FTC should make use of its rulemaking authority to crack down on unfair and deceptive practices, Bedoya said. He also expressed support for the proposed Open App Markets Act, which would prevent companies such as Apple Inc. and Google LLC from requiring developers to utilize their app payment systems.
Bedoya received pushback from some Republican senators, including Sen. Ted Cruz, R-Texas, who called Bedoya a "left-wing activist" and asked about the nominee's views on the U.S. Immigration and Customs Enforcement agency. Bedoya said he has called attention to what he sees as a Fourth Amendment violation in ICE's facial recognition searches.
A new majority
If confirmed by the Senate, Bedoya would replace former FTC commissioner Rohit Chopra, who left the agency in October after his confirmation as director of the Consumer Financial Protection Bureau. Chopra's departure left the FTC with a 2-2 party-line split.
Bedoya is expected to become a critical third vote for the new Democratic majority on future rulemaking proposals and enforcement actions championed by Chair Lina Khan, an antitrust scholar leading the agency's movement to rein in the dominance of Big Tech firms like Meta Platforms Inc.'s Facebook platform and Amazon.com Inc.
"I think he's essential in making big decisions," said Ernesto Omar Falcon, senior legislative counsel for the Electronic Frontier Foundation, a nonprofit organization focused on digital rights. "The chair is running into resistance from the two Republicans on some of the ambition behind what to do about Big Tech in particular. I don't think she would have that same opposition if she had three commissioners on the Democratic side."
Bedoya's nomination is expected to advance to a full Senate vote shortly after Thanksgiving, Falcon said.
The FTC declined to comment on what commission votes Bedoya could be immediately involved with, but experts say he would likely be a key vote on merger reviews and antitrust cases.
For example, if the FTC pursues an antitrust challenge to Amazon's pending $8.45 billion acquisition of film and television company MGM Holdings Inc., Bedoya would be likely crucial to moving that enforcement action forward, said Alex Petros, policy counsel for Public Knowledge, a Washington, D.C.-based nonprofit public interest group. "That's an area where I could see a 3-2 split," Petros said.
Bedoya's vote is also considered important for any settlement of an FTC antitrust case against Facebook that alleges the social media company engaged in anti-competitive behavior and should shed parts of its business, including photo-sharing site Instagram LLC.
Petros and other experts expect Bedoya to take over the "privacy portfolio" of the FTC and advance efforts to create privacy rules cracking down on technology companies' collection of data for online advertising and facial recognition.
The FTC lacks the broad authority to address privacy in the way Congress has the power to enact federal privacy legislation. But the agency does have rulemaking authority to go after violations of Section 5 of the FTC Act, which prohibits unfair and deceptive practices, said Samir Jain, director of policy at the Center for Democracy and Technology.
"The FTC could develop a rulemaking record that using data to discriminate against protected classes is an unfair practice because it harms consumers, and therefore enact rules that would prohibit the use of data for discriminatory purposes," Jain said.