Recent Executive Order Addresses Privacy

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On July 9, 2021, the Biden administration published an executive order focused on promoting and increasing economic competition. While the bulk of the executive order focuses on increased scrutiny of merger activity, two notable privacy-related terms were included.

In the first, the Federal Trade Commission (“FTC”) is “encouraged to consider” exercising statutory rulemaking authority in the privacy space, particularly on methods of data collection and surveillance practices that “may damage competition, consumer autonomy, and consumer privacy.” The exact scope of this area is not defined in the executive order, beyond the stipulation that it must be within bounds of applicable law. Companies would do well to watch the FTC’s potential actions in response to this request in the coming months, particularly given the set of seven omnibus resolutions recently authorized by the FTC, which directed agency staff to use compulsory process to investigate seven specific enforcement priorities. While these resolutions were unrelated to the executive order and passed by the commission eight days prior to the order’s publication, they target seven different classes of businesses, including the technology and healthcare industries.

In the second privacy-related section, the executive order calls on the Consumer Financial Protection Bureau (“CFPB”) to under the Dodd-Frank Act consider rulemaking to facilitate portability to consumer financial transaction data, primarily for the purpose of easily switching financial institutions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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