Cspan 3 and you can see it on cspan. Org and listen on the cspan radio app. The communicators is next. The acting head of the federal trade commission. And then more from Todays Supreme Court hearing conformation neal gorsuch. We will start with his Opening Statement and bring you the entire hearing. Host Maureen Ohlhausen acting chair of the federal trade communication and our guest on the communicator. What is the current status of the federal trade commission . How many people are on it . What actions can you take at this point . The current status of the commission is we are open for business, working and doing the public work very well, i think. There are two current members. I am a republican and i have my colleague who is a democrat. The thing to remember about the fcc is we are generally a bipartisan, enforcement agency. Your rules allow us to have a qualm as commissioner so that is not affecting our work. But we have Reach Agreement to take action. Fortunately, most of the work the fcc does is very much focused on real harm to consumers, fraud, we review mergers, antitrust issues, and those are areas where there is a lot of agreement. The other thing that is happening is under my leadership as chairman i have asked staff to go back and look at the things we are doing that may be, you know, need to be better focused while perhaps have a more limited impact on business. Our investigative demands being too broad, have we defined harm sufficiently, are we using our resources to the best advantage for the american public. I believe staff is very supportive of that. We are moving ahead. We invited you here to talk about Telecom Policy and the fcc. Where is the dividing line between what the fcc regulates and what perhaps the ftc regulates. It is different than it was. The ftc has General Authority on practices affecting commerce but we dont have authority on common carrier and that goes back to the deep origins of the fcc. But previously, broadbrand had not been considered a common Carrier Service but that changed in 2015 when the fcc issued its open Internet Order and expanded title two authority over Broadband Internet access. Since then, the ftc has been affectively nudged out of oversight of that part of the internet ecosystems. We have support over hedge providers and folks like that but the circle around who is the common carrier got much bigger by the fcc who is regulatory action and the open Internet Order. Does that get confusing . I think it is confusing for consumers and i am concerned about that. A consumer who sees the internet may not understand, well, this part of the message is being carried by the isp so it is under one set of rules and edge providers can use this in different ways. Host lets bring brandon into the story. He covers tech policy. Thanks for sitting down with us. To drill down on the broadbrand privacy debate here. When they decided to stay a portion of the broadband privacy rule you and he issued a joint statement saying the main thing you wanted to do was streamline the framework between the fcc and the ftc when it came to broadbrand privacy. Could you run through what the difference is in the fcc privacy broadband framework and the ftcs framework and why the fccs framework is a problem in you view and the view of chairman pai. It wasnt just me and chairman pai. A ruling was filled that pointed out the differences between the fcc and ftc approach. The ftc approach to privacy has always been based on privacy expectation expecting the data will be used and how sensitive the data is. The fcc has a different approach. The fcc focused on what entty ho entity holds the data. If it is an edge provider those rule dont apply. That is the bases of my concern and that is consumers dont understand necessarily why they are seeing data in the same chain of communication would have these different protections. My other concern is it creates a competitive problem. Everyone is trying to compete in the Online Advertisement space ask using the same data and some entities can use that more efficiently than others. I think that is a problem. And the other issue is this ftc has been a very active cop on the beat for Consumer Protection or protecting consumers privacy and data security. My concern was we got elbowed out of that. So the protection that the fcc can provide do they have the expertise and staff level and knowledge to bring the type and level of enforcement activity the ftc is bringing. Yeah, there is somewhat of a Division Within the federal trade commission on this issue because your colleague wrote an opted where she said it is great have to one cop on the beat theoretically but the fcc is working and has always worked with regulators to make sure all these things are regulated properly what would be the response to say the regular regime for privacy or really anything works better when other commissioners and regulators are involved . Guest the fcc was the final approach and took away our authority to bring the overnight oversight and enforcement. It isnt a coordinating with other agencies but being taken off. The Top Republicans in congress are now working to do a resolution to undue the federal communication broadbrand privacy ru rule. One of the arguments make is the ftc will be able to pick up the gap. There is concern there was there was a 9th Circuit Court case last year between at t and the ftc that came to the decision the fcc doesnt have jurisdiction over the common carriers and i know under the Previous Administration the fcc was looking to push back on that court case. Can you concerned that leaves a gap . There is a lot of people that say the fcc will have their hands tied by this court case. You raise an important issue and should know the ftc supports Congress Getting rid of the common carrier. It doesnt make sense anymore. It was put in place when networks were monopolies. The ftc case has a lot of amicus briefs filled in support of our decision. The common carrier exemption we had interpreted it was applying to activities so that we could not have oversight over an activity and it didnt fence out our authority over the whole entity. I would say if we are not able to get the 9th circuit to reconsider the congress would reconsid reconsider. What is the advantage of the fcc having the authority over the common carrier . I think the advantage is it then creates a level Playing Field for businesses and consumers. The same rules apply no matter who is holding your data. Consumeers are not really concerned or maybe dont understand the chain of custody of the internet as the message is traced back and forth. Also the ftc has a lot of expertise in this area who know how to bring these cases. We have brought hundreds of privacy and security data cases. I know we have been a very effective cop on the beat. If they decide not to take it up and the fcc privacy rule is overturned through congress or the fcc itself what happens to consumers privacy when it comes to isps in the mean time . I would say you realize this gap was created in 2015. We have been operating under that the entire time. I believe chairman pai has mentioned the condition, the fcc, could act under that provision. It is on a case bie kay cases so the commission would have to go and first they would have to have a complaint. You have a background as a lawyer and worked on data protection, cybersecurity, you were a party at wilkerson here in washington d. C. And spent 11 years on the staff. Brendon is with morning line consult. Go ahead. Switching gears i would like to talk about the security of things. You spoke about this and you said your feelings is the ftc is not primarily a regulator when it comes to mandating best cybersecurity practices whether it is thermostats, cars, everything is attached to the internet these days. If it isnt the commission, what is the best way to supply the prices . I feel the coverage of my remarks was incomplete. My point was the fcc is the enforcement authority. We have brought enforcement action in the internet of space. We brought a case several years ago against a Company Called trend net that had an internet enabled camera with a security flaw allowing with an ip to post a live feed. We brought a case against asa which was a router maker for flaws that it had that could affect the internet. We are definitely enforcing ftc aspects. We are also bringing to your our policies. We highlighted the need to have good data and cybersecurity practices in the internet of things area. I think the ftc is going to continue to Pay Attention. Chairman, when you talk about regulatory humility what do you mean . That means understanding the limits we as enforcers have to our knowledge. It is very hard to predict the future and to know where technology is going and where the risks might happen and where the benefits also might occur. We should direct our researchers toward harm that is likely to occur in the marketplace and i believe our active enforcement in that place sends the right signal to businesses Pay Attention to what you are doing. You dont want to be under investigation and a lawsuit for the ftc. It is bad for our business, customers and the entire industry. That is why i believe regulatory humility directs us back to gives the best bang to buck for consumeers now. You talked about harm and is that different than what the former chairman approached . Not necessarily different. Substantial harm goes back to the practice and we have to show it is likely to cause harm and it isnt outweighed to benefits of competition and consumers. For us to use that authority we have to show substantial injuries. We identified a variety of harms that could cause substantial harm certainly financial but it involves health and safety and information about children and things like unauthorized balance in the home going back to the train net case. What i significantled, as we continue to have have the new information and new ways we need to think hard about substantial am jury in the Information Age we are in. In the viseo case i filled a separate statement where i highlighted we were saying the collection of individualized viewing data iss causing injur y except for the disception case. The was an issue we need to think hard about. Noah, can you and commissioner mcsweeny have a discussion in the hallway . Or do you have to send them out ahead of time . If we are talking about the weather or general topics we can talk to each other. But if it involves an issue where we might have something to vote on then we would need to notify, have a notice we are talking about. What about you and chairman pai over at the fcc . Any restrictions on your discussions . I think certainly like the ftc rules but otherwise, we dont make a quorum about anything. It doesnt cover the sunshine act. How does the lack of quorum affect the ftcs about to operate . We have a quorum. I think having more there to weigh in and give support would be useful. There isnt the potential that we need to vote on. With a deadlock, it doesnt move forward. And the end result of a full position would be the republican majority given the regulatory outcome you would like to see. Have you had conversations about with the white house about nominations and commissions coming down the pike on this . I kn i know they are thinking about it but i think they have a long list ahead of them and i dont expect we are seen as the crisis that needs to be solved today. But i know they are engaged in figuring out who should be the next commissioner. There are groups that want to take you from active chairman to full chairman. What do you think about that . I have been very heartened by people that understand my record, understand what i have tried to enact for the agency. One of the things i tried is articulate what that vision is. I have announced i convened an Economic Liberty Task force. I think it is consistent with job growth and Economic Opportunity that the Trump Administration laid out. Chairman Maureen Ohlhausen, you talk about the United States regulations but telecom and privacy standards are different internationally. How does that affect your work and the work with the europeans . You mention how it is very active discussion point in europe and it is in the u. S. We see it differently in the u. S. And through a different lens and how do you make it work . My view is we may never convince each other that one lens is right and the other lens is wrong but what we need to focus on is inoperability. We need to work on making that innerpoperable ma way that europeans want and respect and the data can be sent and respected by the u. S. When the immigration order came down from the white house there was concerns from data regularators this might impact the european data. There is a section of the order that talks about the government being able to collect data on citizens from others. This effects government collected data and not where it is enforced. Have you heard anything to say the europeans have gotten the message and are calm over the situation . The the department of justice confirmed it mentioned the privacy act but didnt affect the Privacy Shield. Since that time, i believe the europeans have indicated they understand the clarification and the consensus. The commercially collected data is where the Privacy Shield is . There are National Security portions of the Privacy Shield. The ftc doesnt have involved involvement with that. I am not going to speculate out of my area of expertise. If you were to become permanent chairman, do you have any sort of broad agenda items you would like to see taken our during our tenure . Maybe something you thought the ftc should address for a long time . We need to think harder about what substantial harm. I have econo mist looking at it and i want to to be part of the bigger discussion. We all need to be comfortable with what this means going forward. We have antitrust oversight. I mentioned my Economic Liberty Task force and the infrsment in antitrust and focus on abuse of Anti Government processes. I want to use enforcement tools where i can to enforce the barrier. Can you give the example of mother may i . The favorite one is the one that went all the way up to the Supreme Court court in north carolina. It was a dental board made up of dentist determining they didnt wa want to allow nondentist teeth whitening to take place and sent out cease and detest letters. It was being driven by concerns of people cutting into the profits of the dentists engaging in tooth whitening. I sat in the audience and heard it argued before the Supreme Court and we were successful there. This is something we see over and over and occupational licensing is flourish. A lot of these licenses have no relation to health, safety or the kind of consumer profections we think require license. It has to do with florist and interior decorators. And that is a brother may i problem when you need permission from competitors to arrange flowers. We have one minute left. Last question. To circle that and focus on the harm concerning privacy. You want to look at this and figure out where it falls. Is it your concern that perhaps consumers and regulators are erring too much on the side of p permiting commerce . Or are they too sensitive and it is beg fishalal for consumers to do so . Which side are you thinking the ftc is likely to fall on beneficial. I will say it all depends. Essentially, it is part of the unfairness test. It needs to be balanced. I notice the access to security approach and the onset of security of things is out done boy what is happening