President-elect Donald Trump’s choice to head the Federal Trade Commission will compete with the agency’s technology policies by focusing on alleged censorship by Big Tech companies and fostering innovation in the AI market. We want to provide enforcement priorities.
Andrew Ferguson, whom President Trump nominated on Tuesday to chair the FTC, has served as the commission’s Republican commissioner since April, and although they have different priorities, they have been closely aligned with the Biden administration in terms of its broader focus on tech. is keeping pace with.
In a statement Tuesday night, Ferguson vowed to “end Big Tech’s vendetta against competition and free speech.”
He also urges caution when it comes to regulating artificial intelligence. In September, he criticized the FTC’s call for comprehensive AI legislation, saying this early regulatory action could stifle innovation in U.S. tech.
John Yoon, a George Mason University law professor and former FTC economist, said Mr. Ferguson occupies an unusual “middle ground” position among Big Tech skeptics. “It’s not common to have aggression at one end and innovation focus at the other end.”
Mr. Ferguson’s duties at the FTC consist of enforcing domestic competition and consumer protection laws. He will join the chairman’s office as the Biden administration prepares to hand over a series of ongoing cases and investigations targeting Big Tech. At the FTC, this includes monopoly cases against Amazon.com Inc. and Meta Platforms Inc., and a broader antitrust investigation was launched against Microsoft Corp. in November.
Ferguson’s public comments suggest that while big tech platforms will receive less attention over their investments in AI development, they may face more scrutiny over their content moderation policies.
But it also raises questions about what that enforcement would actually look like and whether it would be “motivated by something more personal or political to Trump,” says the Vanderbilt University law professor. Professor Rebecca Ho Allensworth said.
“What specifically would Mr. Ferguson do as FTC chairman to target censorship that does not violate the First Amendment?” she asked. “What specific choices will he make to allow AI to flourish? That’s very unclear.”
The FTC has the power to protect consumers from unfair and deceptive practices, but to prove that anti-conservative bias is suspected of harming consumers, Ferguson said Commissioner Lina Khan It could require the same type of novel legal theory coming out of the FTC that was used under scrutiny and criticized when applied to the Federal Trade Commission. Issues such as AI discrimination.
“While he has clearly declared war on left-wing AI bias,” said Manisha Mittal, a partner at Wilson Sonsini Goodrich & Rosati and former associate director of the FTC’s Privacy and Identity Protection Division, “The FTC’s authority is limited.” “Under the FTC Act, this action has to be deceptive or unfair. I think it’s a big open question as to what authority they would use to do that.”
“Private Power”
Ferguson was responsible for content management on Big Tech platforms surrounding the coronavirus pandemic and the 2020 election, including Meta and Twitter restricting access to a New York Post article about then-candidate Joe Biden’s son Hunter. said it helped shape current views on antitrust law.
Ferguson, a former Virginia attorney general and aide to Senate Republican leader Mitch McConnell (R-Ky.), said: “I believe there is a conglomerate of private powers that is extremely dangerous to human freedom.” “I have come to accept that prospect.” Dynamist” November podcast.
Ferguson sees interest in more light-touch AI regulation as part of a way to increase competition in the technology sector.
“Haphazard regulatory responses will only stifle innovation, further entrench Big Tech incumbents, and push AI innovators to jurisdictions more friendly to them, but perhaps the United States,” he said in a statement in September. “This would certainly result in a move into a hostile jurisdiction.”
This sentiment appears to be echoed by the incoming administration. President Trump has already vowed to rescind Biden’s executive orders on AI security and privacy protections, and has named venture capitalist David Sachs as the White House’s AI and cryptocurrency czar.
Enforcement history
Ferguson’s approach to AI is not limited to an attitude toward competition. As a commissioner, he has already addressed the agency’s unreasonableness and deception powers in enforcement actions against AI companies under Section 5 of the FTC Act.
Mr. Ferguson has supported authorities in cases of clear deception, but disagrees with the Democratic majority on how these AI tools can be used by others.
“It’s clear from his past votes that he has generally supported those cases where there is clear deception,” Mittal said.
But Mr. Ferguson’s narrow view of harm is likely to divide his Republican majority and Mr. Khan, the outgoing Democratic Party chairman. He opposed an enforcement order against Ryter, an AI tool used to generate fake reviews.
Making generative AI illegal simply because it can be used to commit fraud “goes against our precedent and common sense,” he said. “And it risks strangling potentially revolutionary technology in its cradle, threatening to turn honest innovators into lawbreakers.”
Mr. Ferguson also recently agreed to take enforcement action against IntelliVision for misrepresenting the accuracy of its AI detections and its ability to run its services with “zero gender or racial bias.”
Mr. Ferguson agreed that the company had made false claims and engaged in deceptive conduct. But he said his vote meant the committee was voting to “fix the meaning of ‘bias'” by requiring software to produce comparable results “across racial and gender groups.” This does not mean that he believes that he is.
This break with the majority could signal a setback for the agency’s enforcement efforts to address the harms of algorithmic gender and racial discrimination under Ferguson.
“It’s reasonable to expect that there will be different perspectives on what constitutes consumer harm,” said Aaron Burstein, a partner at Kelly Dry & Warren LLP and former FTC attorney. .
