FTC considering social media enforcement approach, official says

New leadership at the Federal Trade Commission (FTC) may lead to changes in the way it tackles social media-related enforcement, according to an agency official.

Jarad Brown, attorney with the FTC’s division of privacy and identity protection, told attendees at a recent Practising Law Institute event in New York that the commission’s new head has indicated in comments some forthcoming tweaks to its enforcement program.

Maureen Ohlhausen was last month designated as acting chair of the FTC, having served as a member of the commission since April 4, 2012. According to Brown, Ohlhausen has said she wants to renew the agency’s focus on concrete consumer harm when considering taking action, rather than simply assessing the likelihood of harm having occurred. At the same time, however, Brown said the FTC will be looking for damage caused by rule violations beyond financial harm to areas such as the leaking of sensitive medical information.  

Ohlhausen has also said she wants to study the impact of data security harm, he added. For example, the agency will look into the internet of things to assess how machines or other devices might be hacked then used to harm customers or companies, Brown said.

In addition, Ohlhausen has said she wants to look at the remedies the FTC imposes in enforcement cases – which have increasingly become focused on disgorgement and redress to harmed parties – to see how they are calculated, Brown told delegates. He predicted that remedies would continue to increase, even if the way they are assessed changes.

Fellow panelist Heather Maples, senior special counsel with the SEC division of corporation finance’s office of chief counsel, said her agency will want to see that investor protections are not undermined by offering promotions being delivered via social media. The commission will also want to make sure its rules don’t prevent companies from sharing useful information, she said.