Pieces, competition antitrust law and Consumer Protection which covers a wide swath of territory but includes everything from gardenvariety scams to fight the enforcement in both of those areas squarely in the middle of a lot of really interesting changes that our society is going through and technology which all of us are dealing and not many of us are using. Host technology and telecommute occasions have become a bigger part of your portfolio over the last couple of years, havent they . To some extent yes. I say to some extent because telecommute occasions are much more the purview of the Commerce Department then the ftc but for example with respect to privacy we do work there with respect to advertising claims we do work there and certainly technology is a big part of what we do. Host antitrust when it comes to technology, correct . Guest yes, very much so. Host there was a recent article in the wall street journal talking about the potential lawsuit against facebook. Could you tell us about that . Guest all i can tell you is that we publicly confirmed we are conducting an antitrust investigation but beyond that i dont want to say anything about any matters. Host could you tell us what the basis for that investigation is . Guest no, again all i can do is confirm that there is an ongoing investigation. Host great. Joining us to look at some of the issues at the federal trade commission is actually gold with axioms. Hello, commissioner phillips. Thank you for coming and appearing with us today. I want to start with something general since we are getting close to the election and getting close to a possible new presidency though of course we dont know what will happen in november but looking back at your past 12 years of the ftc what is on your mind as your biggest compliment or favorite moment so far . Guest i think our biggest accomplishment has to do with bringing increased focus to privacy issues. Privacy is an area that has been an important focus for a lot of people for a long time but i think the Public Awareness of what is going on with the data of ordinary americans, what is being collected, how it is being collected, with whom it is being shared and that has been a real important focal point for us and i think it is a real issue that Going Forward the nation is continuing to grapple with. Congress is considering doing privacy legislation in some states have adopted privacy legislation and others may continue to do so and that certainly a big topic under discussion in asia and europe really around the world. I think we have a big impact because we brought a lot of important cases and we have set out some important precedents and there is a lot to debate and that debate will continue but i do think our focus on privacy will be a big issue or a really big new issue for us. It is not entirely new to this commission, of course, but a bigger issue. The other thing i would add is the focus on tech and antitrust. Over the course of my tenure we have established what is now the Technology Enforcement division to take a new and fresh look ed conduct emerging in the tech space and we are doing a six day study and thats the pre merger modification statue and thats the antitrust privacy side and those have been important focuses for this commission. On the privacy front something ive been taking about is childrens privacy, especially with all the Online Learning going on with the coronavirus pandemic. You got more kids stayed home and doing online schools that weve ever seen in the country and that has to come with a host of privacy issues. I know we got the childrens Online Privacy protection act but that only goes so far and only covers kids up until age 13. What is the ftc looking at at this unprecedented time when there is so much online schooling and should be expect any enforcement action against any Educational Technology companies and what else do you think people should know about Online Learning and children privacy . Guest let me say a few things about that. Its really good that we have a lot of these technological tools to recreate, as best we can, all the experiences that we are without in this pandemic. Whether it is meeting with friends or family or praying at a synagogue or church or the mosque or going to school it is better that we have these online schools and that we not have them. As much as i would rather have my children in school in person all the time i would rather them have some education and its really important to keep having them. The second thing i would say that as we scramble, weve been society as a whole, but also leading schools and companies that provide and to provide the version of education that they are providing i do think we want some of these schools to be focused on the products they are competing and how that is the most important and that is the education of children rather than liability. That is why i share agreement with the chairman and the statement he made early on during this covid19 crisis that where companies were working in good faith to provide needed goods and services to people and to schools and so forth we would take that into account as a matter of our prosecutorial expression for look, the law is the law. We will continue enforcing the law and we are interested in what is going on but i do think we need to keep in mind when we think about education and privacy and covid19 that it is better that we help in stoking the growth and innovation in the space is important for kids in particular. Is there anything youve experienced as youve gone along in this pandemic and this Online Learning that has been of concern to you or is there anything you would specifically want to warn teachers or ministers about throughout the year with online schooling in conjunction with Educational Technology in particular . Guest i dont know that there are particular practices that ive seen in the context of my job but i think that schools are thinking about a lot of Different Things, easeofuse, propriety of a given platform and use a different tool then break and a gardener than a fifth grader. I do think School Administrators should be cognizant of how, lets say, a provider makes his money and you might want to think about what is the role of ads and what data are being collected and what data is being shared just as when you entered into the contract with any provider you wanted to know a little bit about and that makes all the sense in the world but i suspect that concern about privacy liability isnt the first problem schools are trying to solve and i dont think and obviously we dont have a nationwide privacy law so once people are over age 13 there is no federal privacy law even though there is an we are getting towards the end of this year and end of this congressional session and in a couple months and we still dont have a National Privacy law. At the beginning of this a administration that is something that everyone in the tech policy space was expecting to come together but how you feel about that and how much more could the ftc have done in the past couple of years if you have a federal privacy law . Guest i think if we had a federal privacy law or enforcement with much me along the lines of [inaudible] weve done a lot of ftc actions and thats another big tool behalf but certainly enforcement will look different if we had a lot but the big thing i would say and i said to congress repeatedly is privacy is a term that means Different Things to different people. For some its autonomy over their data, for some it is Data Security and a lot of Different Things in privacy but what i Want Congress to do as they go through this process is first on whatever problems youre trying to solve and when you say we need privacy, wide to be needed and then you move on to the discretion of the remedies and by remedies i mean things like should we plan state law and should we have a private action and should the penalties work . Those are all really important questions and we need to get the right but i do think what you see to some extent as i understand it in the legislator process is people are fighting about those things and focusing less on where we want the lid regime to be and where do we want to be what we want not to be what we want subject to us to send a requirement, is it opt in, opt out and there are questions that go into fashioning privacy law. What weve seen when we look around the world is this has gotten long. People can get this wrong. I think we need to focus on that question and move forward. I think taking time and care on a question like this is really important and rushing into it less so. In regard to privacy something everyone has been talking about the past couple weeks is tiktok and the potential deal to let tiktok either move if you have data to u. S. Location, oracle or become a usbased company in general and there are a lot of questions and its its not been approved by cps or the president but it is looking like oracle or if tiktok user data is moved to oracle servers that really only changes where its data is housed and im wondering if you think a deal and the deal about to go through goes far enough to protect u. S. User data with tiktok and what you think should happen and generally what you think of how this whole process has been. Its been quite unusual how it has gone down. Guest the first thing i should start with as i dont have enough details on the deal to evaluate. The reason i dont have enough details is it is not privacy review. It is not an antitrust review. It is not something that we are looking at in the way that sify is at it. If sophias process and those are National Security operations run by parts of the u. S. Government and so are they how they evaluate something is very different for instance that how we might evaluate it if we were looking at a competition question or looking at a privacy question. To be clear, we dont evaluate deals for their privacy and there is no statute to say that something has to pass privacy must or the Consumer Privacy that we look at privacy in order to go through there is a longer conversation about the confederation of privacy as an aspect but there is our National Security and they do implicate privacy. [inaudible] to some extent that is the National Security side of it. Host let me just very quickly jump in here. Noah phillips, when it comes to the gdp are in europe and californias privacy law what are your general feelings about those two systems . Guest a lot of the data we have seen coming out of europe the studies about the ad Tech Industry at about Venture Capital invests suggests that gdp are is not helping to stoke innovation making it be entrenching some of the Largest Tech Companies that work to some extent objects and certainly what you see out of the European Commission is lots of new [inaudible] and there is no indication that they feel whatever problems they are seen are solved. But it is a big, big piece of Regulatory Burden and there are aliens of dollars and i dont know the exact number but being devoted to compliance whether that is such a great thing im not so sure. I think california is just coming into effect and we will see what those effects are and what we already know is that there are stakeholders in california already looking to stay in the law and that tells you something about the ability of the law in the first place to solve again whatever its problem is that people thought they were solving. Urethane the ftc would not be looking at tiktok in the same manner that cfius or the Commerce Department would be. As the ftc looking at tiktok at all . Guest other than what we publicly confirmed i never talk about investigation. Remind me guest its not an answer either way. [laughter] remind me when your term is up and if President Trump loses the second term will you stay on or are you serving as commission during abiding presidency . Guest my term is up in three years from the end of this month. The way the statute works you can stay until your replacement is confirmed by the senate. I am not thinking that far ahead. I have not given that a lick of thought. You have not decided whether you will stay on or not there is a change in the administration . Guest well, the term has to change in the administration. I have every intention of serving out my term. I havent given a lot of thought to what happens after that. Host commissioner phillips, you are currently in the majority with three republicans and two democrats but first about what is the relationship between the five commissioners, can you hold meetings with individual commissioners or is there the sunshine law that affects you . Guest we do have a sunshine act that means three of us cannot meet at the same time so we do a lot of oneonone meetings. I regret these days and those oneonone meetings cannot be in person and zooms but in general matter if we are going to have a meeting of more than two we need to put Public Notice out under our statute. I want to ask you about section 230 and if you could, clarify your position on whether you think section 230 plays that all into competition or content moderation because he seen conflation of all the topics lately in various congressional hearings and in the media and i want to know what you think about section 230 and whether it relates to those other topics . Guest okay. So, im not an expert on 230. I will say the following. It doesnt really bear on competition in any way that is obvious to me. Any law that affects markets has some bearing on competition and its not a law protecting competition. It is a law on some level protects content moderation paid it is protected from liability but the principal impact that it has on an agency and i dont know it makes a huge difference on a daytoday basis is it governs, you know, civil liability paid it doesnt do a thing or but were civil lawenforcement agency so to some extent it limits our jurisdiction but on a daytoday basis it doesnt make a lot of difference in terms of our power but in section 230 it raises a lot of interesting policy questions. If a statute that Congress Passed people have a lot of different views about what we ought to have as our statute and there was an amendment not so long ago and i think that is Something Congress is very much talking about in congress is the right entity to make that decision. I want to ask you generally how you feel about the future of independent agencies. Recently, we have seen commissioner mike oreilly of the federal Communications Commission or in his renomination was pulled by the white house and a lot of people are time that two comments he made about section 230 and the president s executive order. We have no way of knowing that is exactly what happened or why the white house pulled his nomination but does that create a Chilling Effect for independent agencies and what commissioners can go out and say . Guest let me say two things. The first is mike oreilly is a friend and former colleague. Hes a terrific person and im a big fan of his prints i could would say is fundamentally no. We operate as a bipartisan agency and we dont always agree on all the work were doing is getting ice from both sides of the aisle and we do have a protection against buyer that congress put in statute and at the end of the day its the five commissioners who make the decision. Host Noah Phillips, and her last ten minutes and want to make sure we talk about antitrust as well. This is the field you worked in when you are with senator cornyn on the Judiciary Committee in a stanford trained lawyer so what is your definition of antitrust and is it something that you can see and is it obvious . Guest something yes, sometimes less so. Antitrust protects the competitive process. The way that has been interpreted by courts for decades is in the service of consumer wealth, what does that mean and were looking at the best of market conduct whether mergers or other kinds of conduct in terms of how it affects the consumers, not just in terms of how it affects other forms of the market meaning that just because conduct at one firm versus competitors in the market doesnt mean its illegal in any way. There are aspects of antitrust law that lend themselves very easy and you cant fix prices and divide markets and those are governed by what we call rules and other sorts of conduct that might have ambiguous welfare effects and are governed under the rule of reason and that is something weve had in case law when you think about the breakup of standard oil than that decision from the Supreme Court in 1911. That is how long weve had that and theres kinds of conduct sometimes that for one person might look really bad but might impact my not be so bad when evaluated and vice versa. Host commissioner phillips, in the past, not current cases, but in the past could you give examples of the larger Tech Companies behaving in antitrust ways . Guest look, there is a lot of cases that have been brought over time against large Tech Companies but we had antitrust laws on the books for 100 years and [inaudible] has been on the books since 1960 and intel was the object action, ibm was the object of an action went on for 13 years until the Reagan Justice department and did not result in anything and most famous example would be micro soft case. Microsoft was alleged or let me simplify but it is operating system monopoly through a variety of tactics, including tying the floor to t