Law, and Consumer Protection which covers a wide swathe of territory but includes everything from gardenvariety scams to [inaudible] both of those areas are squarely in the middle a lot of really interesting changes that our society is going through and technologies which all of us are dealing and not many of us are using. Host technology and telecommunications had become a bigger part of your portfolio over the last couple of years, havent they . Guest to some extent yes your essay to some extent because telecommunications are much more purview of the Commerce Department in the fcc. But, for example, with respect to privacy, we do work there with respect to advertising claims. We do work there and certain technology is a a big part of t we do. Host and antitrust when it comes to technology, correct . Guest yes, very much so. Host it was a recent article in the wall street journal talking about a potential lawsuit against facebook. Can you tell us about that . Guest all i can tell you is we publicly confirmed were conducting and antitrust investigation. The on that i do want to say anything about pending matters. Host can you tell us what the basis for that investigation is . Guest no. Again, all i can do is confirm that there is an investigation ongoing. Host rates. Joining us also to look at some of the issues that the federal trade commission is facing is ashley gold with axios. I want to start with something kind of general since we getting close to the election, getting close to a possible new presidency, though of course we dont know what will happen in november. Looking back at your past couple of years, what sticks out in your mind as your biggest accomplishment 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, thats been a real important focal point for us, and i think its a real issue that Going Forward the nation is continuing to grapple with. Congress is considering doing privacy legislation. Some states have adopted privacy legislation. Others may continue to do so. Thats a big topic under discussion in asia, in europe, really around the world. And i think we have done, we have really big impact. We brought a lot of important cases. We have set out some important precedents. Theres a lot to debate in that debate will continue but it do think our focus on privacy has been a really big issue, i really big new issue for spirit is not an entirely new to this commission of course but it is a bigger issue. The other thing i would add is focus on tech and antitrust. Over the course of my tenure weve established what is that the Technology Enforcement division to take a new and fresh look at both content and mergers in the tech space. We are doing a study, a premerger notification. Those have been really important focuses for this commission. On the privacy front something ive been thinking about is childrens privacy, especially with all the Online Learning thats going on because of the coronavirus pandemic. Youve got more kids staying home and an Online School then weve ever seen in the country, and that is to come with a host to privacy issues. I know weve got the childrens Online Privacy protection act, but that only go so far and that only covers kids up until age 13. What is the ftc looking at at this unprecedented time with her so much online pooling, and should we inspect Enforcement Actions against any Educational Technology companies . What else do you think people should know about Online Learning and childrens 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 of the experiences that we are without in this pandemic, so whether its meeting with friends or family, or praying at synagogue or church or the mosque, or going to school, its better that we have these online tools and then we not have them. As much as i would rather have my children in school in person all the time, i would rather have them some education and think its really important to keep that in mind. The second thing i would say is that as we scramble, leaving society as a whole but also including school and companies that provide these products, to provide the version of education that we are providing, i do think we Want Companies and schools to be focused on the products they are providing and have as their most important concern. That is, the education of children rather than liability concerns. Thats what i share agreement with the chairman, the statement he made the early on during this covid19 crisis that when Companies Working in good faith to provide needed goods and services to people, to schools and so forth, we would take that into account as a matter of our prosecutorial discretion. Look, the lot is the law. Were going to continue enforcing the law. We are interested in whats going on but i do think we need to keep in mind when we think about education and privacy and covid19, that its a lot better we have these tools, and stoking the growth and innovation in the space is really important, for kids in particular. Is anything you have seen as we have gone along in this pandemic and this Online Learning that is been a concern to you or is it anything you specifically want to warn teachers or administrators about as they keep going throughout the year with Online Schooling in conjunction with Educational Technology in particular . Guest i dont know that our particular practices that ive seen in the context of my job. I think that schools are thinking about a lot of different things, thinking about easeofuse and the propriety of a given platform or a certain age group, you might use different tool for kindergartner than eighthgrader. I do think School Administrators should be cognizant of how, lets say a provider makes money and you might want to think about what is the role of ads, what data are being collected, with whom who are the data beig shared, just as we entered into a contract with any provider you want to do a little bit about what they do. That makes all the sense in the world. But i suspect that concerned about privacy liability isnt the first problem schools are trying to solve and i dont think it should be. Obviously we dont have nationwide privacy law, so once people are over age 13 theres no federal privacy law protecting them, though there is where getting towards the end of this year and the end of the congressional session only in a couple of months. We still have a National Privacy law. At the beginning of this administration that something everyone in the tech policy space was expecting to come together. How do you feel about that and how much more could the ftc have that if he did have a federal privacy law . Guest i think if we had a federal privacy Law Enforcement would be much more along the lines of that market we have done a lot of coppa enforcement, a lot of cigarettes enforcement action, thats another the tool that we have. Certainly enforcement would look different if we had a law. The big thing i would say that i said the congress repeatedly is privacy is this capacious sort of sort of term. For some its autonomy over the dated. Data. For some its data security. What i Want Congress to do as they go through this process is focused, first, on what are the problems youre trying to solve . When you say we need privacy, why do we need it . And then move on to the discussion around the remedies. By remedies i mean things like should we preempt state law . Should have private right of action . How should the penalties skew . Is her all important question we need to get right buddy do think what you see to some extent as i understand in the legislative process is people are fighting about those things and focusing less on what we want the regime to be . What we want to be permitted . What do we want not to be permitted . What do we what subject to consent requirement . There are a lot of different questions that go in with fashioning a privacy law. What weve seen when you look around the world is people can get this wrong, and 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. Rushing into it, less so. With regard to privacy something and who has been talking about is tiktok and a potential deal to let tiktok either move you as a data to adjust location, be it oracle or to become a u. S. Based company in general. There still a lot of questions. A deal has not been approved by the president yet but its looking like if tiktok u. S. Data is moved to oracle servers, that really only changes with the data is housed, and im wondering if you think a deal come to give it seems to be about to go through, coastal enough to protect u. S. User data with tiktok and what you think should happen, and generally what you think about how this whole process has been . Its been quite unusual how it has gone down. Guest the first thing i should start with is i dont have enough details on the deal to evaluated. The reason i dont have enough details about it is its not a privacy review. Its not that antitrust review. Its that something we are looking at. The processes are National Security operations run by different parts of the us government, right, and so how they evaluate something is very different, for instance, than how we might be evaluated if we look at the competition question or looking at a privacy question. To be clear, we dont evaluate deals for the privacy. Theres no statute that says something has to past privacy master in the Consumer Privacy since we look at privacy in order to go through. Theres a longer conversation about consideration of privacy as an aspect of competition but this is a National Security review. Him him. Host let me jump in. When it comes to the gdpr in europe and californias privacy law, what are you general feelings about those systems . Guest a lot of the data weve seen coming out of europe, the studies about the ad tech industry, about Venture Capital investment suggests that gdpr is not helping to stoke innovation, may even be entrenching some of the Largest Tech Companies that would some extent objects of the effort in the first place, and certainly what you see is lots of new proposals. Theres no indication they feel whatever problem they are saying are solved. But its a big, big piece of regulatory burden, and there are billions of dollars, i dont know the exact number but something in the range im sure, being devoted to compliance. Whether thats such a great thing im not so sure. California, it is just coming into effect. We will see what those effects are people we already know is that they are stakeholders in california already looking to expand the law. That tells you something about the ability of the law in the first instance to salt lake and whatever problem it is that people thought they were solving. Usa that the ftc would not be looking at tiktok in the same manner that safe cfius or the Commerce Department would be. Is the ftc looking at tiktok at all . Guest other than what republican from i never talk about committees investigations. Remind me triptych that is not an answer either way. Remind me when your term is up and it President Trump loses the second term when you stay on and continue serving at the commission during a biden presidency . Guest my term is up in three years from the end of this month, and away the the statute works, you can stay until the replacement if confirmed by the senate. I am not thinking that far ahead. I havent given that a lick of thought. You have decided whether youll stay on or not if theres a change in the administration . Guest well, the term lasts past the change in administration and ive 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 to make democrats. First of all, whats the relationship between the five commissioners . Can you hold meetings with individual commissioners or is there the sunshine law that affects the guest we have sunshine act which means three of us cannot meet at the same time. We do a lot of oneonone meetings. I regret that these days come those oneonone meetings are not in person. They are zoom protocols like other people. As a general matter if were going to have a meeting of more than two, we need to put a Public Notice under our statute. I want to ask you about section 230, if you could clarify your position on whether you think section 230 place at all into competition or content moderation decisions. Weve seen a lot of 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 this other topics. Guest okay. So im not an expert on section 230. What i will say is the following. It doesnt really bear on competition in anyway that is obvious to me. A new law that affects markets has some bearing on competition but its not a law protecting competition. It is a law that on some level protects content moderation, a goodfaith content moderation protected from liability under the statute. The principal impact it has on us as an agency, and they dont know that makes a huge difference on a daytoday basis is it governs civil liability. If it doesnt do anything on criminal liability we are of course the civil Law Enforcement agency, so to some extent it limits our jurisdiction. But on a daytoday basis it doesnt make a lot of difference. I think section 230 raises a lot of really interesting policy questions. It is the statute that congress passed. People have a lot of different views about what we ought to have as her statute, the was an amendment not so long ago. I think that something congas is very much talking about, and congress is the right entity to make that decision. I want to ask you general had feel about the future of independent agencies. Recently weve seen commissioner Michael Orielly at the federal Communications Commission whose renomination was fooled by the white house and a lot of people a time that the comments he made about section 230 and the president s executive order. We have no way of knowing whether thats exactly what happened and why the white house pulled his nomination but thats exactly any Chilling Effect for independent agencies and what commissioners can go out and say . Guest let me say two things. The first is Michael Orielly is a friend and former colleague and he is a terrific person. I am a big fan of his. The second thing i would say is fundamentally no. We operate as a bipartisan agency. We dont always agree but all the work we are doing is getting eyes of both sides of the aisle. We do have a protection against being fired by congress put in statute that is still good law, and at the end of the day its the five commissioners to make the decisions. Host Noah Phillips, in our last ten minutes i want to make sure we talk about antitrust as well. This is the field you have worked in when youre with senator cornyn on the Judiciary Committee or stanford trained lawyer. What is your definition of antitrust, and is it something you can see rex is it obvious . Guest sometimes yes, sometimes less so. Antitrust protects the competitive process, and the way that is been interpreted by courts for decades is in the service of consumer welfare. Were looking at the effects of market conduct whether its mergers or other kinds of conduct in terms of how it affects consumers, not just in terms about it affects other things. Meaning that just because conduct that one firm undertakes its competitors in the market doesnt mean its illegal in any way. There are aspects of antitrust law that lend themselves very easy answers. You cant fix prices. You cant divide markets. Those are governed by what we call per se rule, and other conduct that may have ambiguous welfare effects are governed by something called the rule of reason and thats something we that in case law. Think about the breakup of standard oil, that decision from the Supreme Court in 1911, thats a long weve had the rule. Theres lots of conduct sometimes that to one person might look really bad but might impact not be so bad when it is evaluated. Host commissioner phillips, in the past, not current cases come right in the past, can you give examples of the larger Tech Companies behaving in antitrust ways . Guest look, theres a lot of cases that have been brought over time against large Tech Companies. Weve had the antitrust laws on the books for 150 years. Without the clayton act and ftc act on the books. Intel was a object of action. Ibm with the object of an action that went on for i think 13 years. Didnt result in anything. The most famous example of the Microsoft Case where microsoft was alleged im going to simplify to be protesting ps operating system monopoly to a variety of tactics, including Time Internet explorer to the operating system. This summer the house Judiciary Committee had a big hearing with all the major tech executives, and now theyre talking about potential new legislation that would define antitrust of the new digital