Additional remedies for alleged Federal Trade Commission (FTC) Act Section 5 violations in the data security and privacy context

The panel will explore whether, and if so, to what extent, the FTC can and should exercise what new Chairman Simons has called “untapped authority” under Section 5 of the FTC Act to impose additional remedies for alleged Section 5 violations in the privacy and data security context, beyond the remedies imposed in the FTC’s “standard” consent decree. In this regard, Chairman Simons and Commissioner Slaughter recently announced that the FTC is examining whether it can “further maximize its enforcement reach, in all areas, through strategic use of additional remedies” such as “monetary relief or notice to consumers.” No court has ever ruled on whether and when remedies of this sort are ever appropriate in a privacy or data security case. Chairman Simons’ statements suggest the FTC may pursue such relief more frequently and aggressively going forward. The panel will explore whether the FTC can, and should, do so.