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Scott Delacourt and Kirk Nahra Discuss Impact of Presidential Election on FTC Authority and Data Security Enforcement

Law360 
November 14, 2016

Scott D. Delacourt, chair of Wiley Rein’s Federal Trade Commission (FTC) Practice, and Kirk J. Nahra, chair of the firm’s Privacy Practice and co-chair of the Health Care Practice, were quoted in a November 10 Law360 article concerning uncertainty over whether the FTC will continue to have a prominent role in regulating private sector data breaches under the Administration of President-elect Donald Trump.  Little is known about what Mr. Trump has in mind for the FTC commissioner vacancies.

The FTC has been active in enforcing data breach cases under President Obama, but this power could be curtailed under a new Administration that may be keen to rein in the agency’s regulatory powers. “The new chair and new appointees would potentially look at and reassess the FTC authority in this area with fresh eyes,” said Mr. Delacourt.

As the sole Republican member of the FTC, Commissioner Maureen Ohlhausen could be a favorite to take over as Chairwoman. “The Chair in her role at the agency controls the agenda and what is being brought forward for voting,” Mr. Delacourt added. “Elevating Commissioner Ohlhausen to the Chair would mean that there probably wouldn’t be any action from the FTC on items in the short term unless they’re bipartisan in nature, and the new Administration couldn’t implement its agenda, whatever that may be, until it has more appointees in place.”

“The FTC would be a second- or third-tier area of interest for a campaign that had very few first-tier areas and little detail even in those areas,” said Mr. Nahra.

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