ADventures in Law

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To modest fanfare, last week the Federal Trade Commission <a href="https://www.ftc.gov/news-events/news/press-releases/2023/02/ftc-launches-new-office-technology-bolster-agencys-work">announced</a> the creation of a new Office of Technology (Office or OTech). The press release noted that the Office “will strengthen the FTC’s ability to keep pace with technological challenges in the digital marketplace by supporting the agency’s law enforcement and policy work.” Any details about the Office – size and budget – were left to our creative imaginations.

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To understand what this means and what this doesn’t mean, let’s step back a bit. What is an FTC Office? You might be familiar with the FTC’s Bureaus. There are three of them – <a href="https://www.ftc.gov/about-ftc/bureaus-offices/bureau-consumer-protection">Consumer Protection</a> (which we discuss here ad nauseam), <a href="https://www.ftc.gov/about-ftc/bureaus-offices/bureau-competition">Competition</a>, and <a href="https://www.ftc.gov/about-ftc/bureaus-offices/bureau-economics">Economics</a>. And it is Consumer Protection and Competition that lead the overwhelming bulk of the public-facing work that the FTC produces – filing cases, educating the public, starting rulemakings, and more. Then there are a bunch of Offices in the agency, now numbering 11, including the Office of International Affairs, the Office of the General Counsel, and now OTech. Generally speaking, and there can be some sensitivity about how this is described, the offices assist or work with the Bureaus to support a lot of the work that they do, though they also do significant work independent of the Bureaus. Their work can include interfacing with international consumer protection officials to obtain law enforcement assistance, drafting press releases, commenting on state legislative proposals, providing specialized legal advice, or working on congressional issues.

Now, as a matter of organization, the Offices do not report to the Bureaus – they are independent Offices that often do work with the Bureaus. Another thing that is silent in the announcement is what this means for all the technological expertise that currently exists in the Bureaus. Are they all going to be taken out of the Bureaus and put into this new independent Office? The Bureau of Consumer Protection has had its own OTech for many years; the Privacy Division has had on-staff technologists, and the Bureau of Competition has an entire Division called the Technology Enforcement Division. Technology focus and expertise at the FTC are not new – the only new thing here is the centralization, and we don’t know how much is being centralized and at what cost to the Bureau’s existing tech expertise. Removing technology from the Bureaus to place in an Office might not be great for staff access to tech expertise. &nbsp;(It should be noted that a <a href="https://www.ftc.gov/business-guidance/blog/2023/02/looking-back-looking-ahead-ftcs-commitment-protecting-consumers-digital-marketplace">blog authored by the Director of the Bureau of Consumer Protection</a> seems to suggest that the Bureau’s own OTech will not exist going forward).&nbsp; &nbsp;

From my perspective as someone who helped lead a Bureau for many years, I would much prefer having technologists within my chain of command than in a separate FTC Office where they will likely have conflicting responsibilities and certainly will not be able to spend all their time on matters for my Bureau. I am a bit greedy that way.

This is not to say that centralizing technology expertise is a bad idea – it might be fine, or it might be an overall neutral, or it may detract from the ability of FTC staff working cases to get the tech help they need. The issue has been raised many times in the past few years, and indeed, <a href="https://www.lujan.senate.gov/newsroom/press-releases/lujan-introduces-legislation-to-improve-consumer-protections-online/">legislation</a> was introduced that would have required the creation of such an Office. Hopefully this is an effort of the agency leadership to thoughtfully benefit staff and the mission and not just another attempt to get quick headlines without a real focus on what is needed to accomplish the agency’s complex mission.

Federal agencies are often woefully behind on technology issues, but in my experience, the FTC has been better than most at keeping up on important tech issues even without this new exciting centralization. It is not easy for an agency to be tech savvy, as sometimes the need to explore tech advancements can be in conflict with a wide range of other rules and regulations that govern and limit what government agencies can and cannot do.

Maybe this Office will help the agency better tackle tech issues. Perhaps it will lead to a centralized cadre of tech experts who mostly do their own thing and don’t provide enough assistance for the very real needs of the Bureaus and staff that are working on cases involving important tech issues. I’m hoping for the former and not the latter, but time will tell.

For those interested in more information about the role of this new Office and a discussion of technology at the FTC, the head of this new Office released a blog on the topic that can be found <a href="https://www.ftc.gov/policy/advocacy-research/tech-at-ftc/2023/02/century-technological-evolution-federal-trade-commission">here</a>. Though with its 41 footnotes, it might be a bit of a stretch to call that a blog.

FTC’s New Office of Technology Is Not the Game Changer You Might Think