Regardless of who wins in Tuesday's voting, Federal Trade Commission Chairman Jon Leibowitz is widely expected to leave his post after the election, sparking speculation over who could be in line to head the agency charged with protecting consumers and ensuring competition.
Leibowitz, a Democrat, has served on the commission since 2004 and was tapped to be chairman by President Obama in 2009. So far, Leibowitz has not commented publicly on his plans other than telling Bloomberg recently that he would offer his resignation if Republican presidential nominee Mitt Romney is elected. Even if Obama is reelected, Leibowitz has indicated that he plans to leave the commission after the election for personal reasons, several sources said.
If Obama wins a second term and Leibowitz departs, many expect the White House will likely choose a chairman from the two other current Democratic FTC members, Julie Brill and Edith Ramirez, who have both served on the commission since April 2010. Brill, a longtime consumer advocate who worked in Vermont’s office of attorney general for two decades and spent a year in the North Carolina attorney general’s office, has been an outspoken and visible advocate of increased online privacy protections for consumers.
Until recent months, Ramirez, an intellectual-property and antitrust litigator, has kept a lower profile but could have the edge for the chairman post given her political connections to Obama. Ramirez was a classmate of Obama’s at Harvard Law School and served as director of Latino outreach in California for Obama’s 2008 presidential campaign.
Among the names that have been floated as a possible FTC chairman in a Romney administration include George Washington University law professor William Kovacic, who served as FTC chairman briefly during the final months of the George W. Bush administration and has held other posts at the commission. Other possible choices include current Republican FTC member Maureen Ohlhausen and Howard Beales, who served as director of the FTC’s Bureau of Consumer Protection during the Bush administration. Another potential pick is George Mason University law professor and economist Joshua Wright, who was nominated earlier this year to fill a GOP spot on the FTC. Wright, however, has limited experience at the agency.
“Chairman of the FTC, if you’re a privacy person or a consumer-protection person, it’s a once-in-a-lifetime opportunity,” said Jules Polonetsky, director and cochairman of the Future of Privacy Forum.
Regardless of who leads the agency, many observers said that consumer privacy will continue to be a major issue for the commission. In the past two years, the FTC reached settlements with online giants Google and Facebook over allegations that the companies violated their privacy policies. In a report released earlier this year on how to increase online privacy protections for consumers, the FTC called on Congress to pass baseline privacy protections but did not provide any details on what it would like to see in such legislation. Obama also has called on Congress to codify his proposed “Privacy Bill of Rights” into law, which would provide consumers with basic privacy protections.
“Regardless of whether its Obama’s pick or Romney’s pick, I believe the next chairman of the Federal Trade Commission will have to remain focused on consumer privacy,” Electronic Privacy Information Center Executive Director Marc Rotenberg said. He added that while “the U.S. has made progress, there’s still a lot more that needs to be done.”
In an interview on Thursday, Kovacic declined to say whether he would be interested in returning to the FTC as its next chairman but did comment on some of the issues facing the commission. As the lead U.S. agency on consumer privacy, the FTC will face a challenge in persuading the European Union that the U.S. system, which is a mix of sector-specific privacy laws and self-regulation, is in line with the E.U.’s privacy rules. The E.U. earlier this year proposed beefing up those rules, which could make it more difficult for U.S. companies to do business in Europe. One “basic question is what is the U.S. approach going to be in dealing with Europe,” Kovacic said.
Some privacy advocates are not optimistic about the FTC’s consumer protection priorities under a Romney administration. “I fear the FTC could be moved to a remote location whose whereabouts are unknown under a Romney administration,” Jeff Chester, executive director of the Center for Digital Democracy, quipped.
In addition to privacy, one of the FTC’s other key responsibilities is ensuring competition through antitrust enforcement, a task the commission shares with the Justice Department. During an event at the Republican National Convention in August, Romney adviser Charles Black criticized the current FTC’s pursuit of “phony antitrust” suits, which he said hinder technological innovation. The FTC is investigating allegations that Google is engaging in anticompetitive practices.
But it remains to be seen if the FTC under a Romney administration would be less aggressive when it comes to antitrust enforcement or any of its other responsibilities. “There is no reason at all to think a Republican FTC will not be as vigorous in enforcing those laws,” Tech Freedom President Berin Szoka said.