Agencies in Wonderland: Due process and enforcement at the FTC and FCC

[Commentary] The Federal Trade Commission -- and it increasingly seems the Federal Communications Commission as well -- does not feel bound by these principles of due process. Since the turn of the century, the FTC has sought to use its broad enforcement authority to develop new legal norms to govern online privacy and data security. It is motivated by, and attempting to address, real problems. But its approach is scarcely more sophisticated than that of an angry king displaying the heads of those whose conduct he dislikes -- and likely even less effective. The FCC has also indicated that it is also jumping on the enforcement bandwagon. Stakeholders have been debating the role of privacy online for the past two decades -- and now the FCC, with no experience in the area, is simply inserting itself into the discussion. This raises an incredibly broad range of questions. It’s unfortunate that the FCC seems to be modelling its approach on that of the FTC: when firms fall into the FCC’s disfavor (as, it seems, almost all telecommunications firms have), will we hear screams of “off with their heads!”

[Gus Hurwitz is an assistant professor at the University of Nebraska College of Law]