Facebook Data Scandals Stoke Criticism That a Privacy Watchdog Too Rarely Bites

Proving Harm

President Trump’s arrival in Washington kicked off a period of uncertainty at the F.T.C. For 16 months, three of five seats remained vacant on the commission, which was initially led by an acting chairwoman, Maureen K. Ohlhausen, an advocate of “regulatory humility.”

Ms. Ohlhausen’s staff told enforcement officials to slow down on cases, so the White House would not view her as anti-business, according to a former senior official. That official and others interviewed for this article spoke on the condition of anonymity to describe conversations that were private or involved nonpublic F.T.C. investigations.

In an interview, Ms. Ohlhausen denied ordering a slowdown and cited privacy actions she had brought against PayPal and Lenovo. But she acknowledged having argued against going after what she regarded as small cases, like Nomi.

With limited resources, she said, the F.T.C. should “pursue cases where the evidence of actual or likely consumer harms is strongest.”

But that standard is difficult to apply against companies like Facebook and Google, whose services are free, and where it is challenging to prove that privacy lapses cause direct financial or emotional harm.

Two former staffers said Mr. Kohm, who has led the enforcement division for more than a decade, had expressed skepticism about proving harm in cases against tech companies.

In recent months, F.T.C. employees meeting with Mr. Kohm asked how he viewed news reports that big tech firms had tracked users’ locations without clearly disclosing the practice. Mr. Kohm, whose division prosecutes boiler rooms, advertising scams, and other financial fraud schemes, responded that the tech companies were legitimate businesses offering free services, and it was unclear how they had harmed consumers, recalled one person in the meeting.

Mr. Kohm declined to comment for this article. Cathy MacFarlane, an F.T.C. spokeswoman, denied in a statement that he placed a lower priority on privacy cases, saying Mr. Kohm “has dedicated his career to enforcing the orders the commission obtains, not setting his own agenda.”

Article source: https://www.nytimes.com/2018/12/30/technology/facebook-data-privacy-ftc.html?partner=rss&emc=rss