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Protection in the 21st Century

The FTC’s Role in a

Changing World

Federal Trade Commission

October 2020

FEDERAL TRADE COMMISSION

October 2020

Joe Simons

Noah Joshua Phillips

Rohit Chopra

Rebecca Kelly Slaughter

Christine S. Wilson

Chairman

Commissioner

This Report represents the views of staff of the FTC’s Office of International Affairs

and not necessarily those of the Commission or any Commissioner.

The Commission has authorized the staff to issue the Report.

This report is available online at https://www.ftc.gov/news-events/events-calendar/ftchearing-11-competition-consumer-protection-21st-century.

The online version of this report contains live hyperlinks.

The FTC’s Role in a Changing World: Staff Recommendations and Report

Contents

INTRODUCTION AND RECOMMENDATIONS

APPENDIX

OPENING REMARKS BY CHAIRMAN JOSEPH SIMONS

SETTING THE INTERNATIONAL SCENE

SUMMARY OF PANEL 1: Building Enforcement

Cooperation for the 21st Century

SUMMARY OF PANEL 2: Consumer Protection and

Privacy Enforcement Cooperation

SUMMARY OF PANEL 3: Competition Enforcement

Cooperation

SUMMARY OF PANEL 4: International Engagement and

Emerging Technologies: Artificial Intelligence Case

Study

REMARKS BY COMMISSIONER NOAH PHILLIPS

SUMMARY OF PANEL 5: Implications of Different Legal

Traditions and Regimes for International Cooperation

REMARKS BY COMMISSIONER CHRISTINE WILSON

SUMMARY OF PANEL 6: Promoting Sound Policies for

the Next Decade

SUMMARY OF PANEL 7: Effective International

Engagement: Foreign Agency Perspectives

REMARKS BY JAMES RILL

SUMMARY OF PANEL 8: The FTC’s Role in a Changing

World

ENDNOTES

The FTC’s Role in a Changing World: Staff Recommendations and Report

INTRODUCTION AND

RECOMMENDATIONS

On March 25-26, the Federal Trade Commission held the

eleventh in its series of hearings, “Competition and Consumer

Protection in the 21st Century.” This session, “The FTC’s Role in

A Changing World,” co-sponsored by the George Washington

University Law School Competition Law Center and organized

by the FTC’s Office of International Affairs, explored the FTC’s

international role in light of globalization, technological change,

and the increasing number of competition, consumer protection, and privacy laws and

enforcement agencies around the world. 1

The session featured 44 speakers from 17 jurisdictions as well as presentations by FTC Chairman

Joseph Simons and other current and former Commissioners. It elicited input from foreign and

U.S. agency officials, private practitioners, and academic and civil society speakers on the

implications of international developments for the FTC’s work on behalf of American

consumers. The session also touched on issues explored in other hearings sessions such as the

role of the consumer welfare standard in antitrust enforcement and the implications of predictive

analytics, artificial intelligence, and big data.

The session looked at different aspects of the FTC’s international program through five

presentations and eight panels:

•

Building Enforcement Cooperation for the 21st Century

•

Consumer Protection and Privacy Enforcement Cooperation

•

Competition Enforcement Cooperation

•

International Engagement and Emerging Technologies: Artificial Intelligence Case Study

•

Implications of Different Legal Traditions and Regimes for International Cooperation

•

Promoting Sound Policies for the Next Decade

•

Effective International Engagement: Foreign Agency Perspectives

•

The FTC’s Role in a Changing World

The presentations and panels provided information and ideas for the FTC to consider on: the

effectiveness of the FTC’s enforcement cooperation tools and approaches in light of new

challenges in competition, consumer protection, and privacy matters; the effectiveness of the

FTC’s approaches to promoting international policy coordination and best practice development;

and strategies for international enforcement and policy engagement in today’s dynamic global

marketplace.

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In addition to session testimony, several organizations and individuals submitted comments for

the record in response to the hearing announcement, which posed 21 questions related to the

panel topics. 2

Twenty-four years ago, Chairman Pitofsky anticipated the major role that globalization and

technological change would play in shaping the FTC's priorities and enforcement agenda. This

hearing, dedicated to the international aspects of the Commission’s missions, reflects the

important role that the international dimension of the FTC's competition, consumer protection,

and data privacy work are to accomplishing our goals.

– Randolph Tritell,

Federal Trade Commission

Based on the hearing, the Office of International Affairs makes the following five observations

and recommendations:

We applaud Congress’s recent reauthorization of the U.S. SAFE WEB Act, 3 which will

continue to protect American consumers and facilitate cross-border commerce. Congress

should make its provisions a permanent part of the FTC Act to protect American

consumers and facilitate cross-border commerce.

The FTC should pursue additional mechanisms for enhanced antitrust information sharing

and investigative assistance and work to overcome foreign barriers to FTC enforcement.

The FTC should continue to exercise international leadership, leveraging its expertise and

cross-disciplinary synergies to address emerging issues.

The FTC should expand on its initiatives to build strong relations with counterparts,

including through its International Technical Assistance and International Fellows

programs.

The FTC’s experience and expertise should inform U.S. government policies that involve

international issues within the FTC’s mandate.

This report elaborates on these observations and recommendations, which are grounded in the

hearing record and the related experience of the Office of International Affairs.

We applaud Congress’s recent reauthorization of the U.S. SAFE WEB Act, which will

continue to protect American consumers and facilitate cross-border commerce, and

request that Congress make its provisions a permanent part of the FTC Act.

The Undertaking Spam, Spyware, And Fraud Enforcement With Enforcers beyond Borders Act

(“SAFE WEB Act”), enacted in 2006 for a period of seven years, and reauthorized in 2012

through September 30, 2020, was a key topic throughout the international hearings. 4 The SAFE

WEB Act confirms the FTC’s legal authority to sue foreign wrongdoers and challenge

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The FTC’s Role in a Changing World: Staff Recommendations and Report

misleading practices with a nexus to the United States or American consumers. It gives the FTC

critical powers to enhance cross-border cooperation on consumer protection investigations and

fraud actions, as well as to support cross-border data transfer mechanisms. It also enhances the

agency’s ability to cooperate through memoranda of understanding, international agreements,

and staff exchanges. The FTC has used the Act’s powers hundreds of times in a wide range of

cases – from Internet pyramid schemes and sweepstakes telemarketing scams, to complex

advertising and privacy investigations. Recognizing the critical importance of the Act to

accomplishing the FTC’s mission, the Commission asked Congress to reauthorize the Act and

eliminate the sunset provision so that the Act’s provisions become a permanent part of the FTC

Act. 5 Congress reauthorized the SAFE WEB Act on September 24, 2020. H.R. 4779 was signed

into law on October 20, 2020, extending the SAFE WEB Act with a seven-year sunset provision

to September 30, 2027. 6

The hearings confirmed the Act’s value and success as well as the need to make it a permanent

part of the FTC’s authority. Foreign consumer protection, privacy, and criminal law

enforcement officials, as well as senior U.S. agency officials and academics, singled out the

legislation as “a key element” of the FTC’s response to a changing world. 7 Former FTC

Chairman and George Washington University Law School Professor William Kovacic explained

that the Act created an “indispensable element of the infrastructure that supports international

cooperation today” by supporting reciprocal assistance, bilateral information sharing, and

international staff exchanges. 8 Foreign enforcers, including representatives from the United

Kingdom’s Information Commissioner’s Office and two Canadian law enforcement agencies

agreed, citing numerous, concrete examples of investigative and case cooperation pursuant to the

SAFE WEB Act. 9 Others described how they had developed reciprocal mechanisms modeled on

the SAFE WEB Act that enable them to provide similar assistance to the FTC. 10 Deputy

Assistant Secretary James Sullivan from the Department of Commerce’s International Trade

Administration underscored the importance of the Act for cross-border commerce. He

explained, for example, that the FTC’s powers under the Act are “integral” to the functioning of

the APEC Cross-Border Privacy Rules System, an important mechanism that many U.S.

companies use to carry out cross-border data flows. 11

Eliminating the sunset provision in the SAFE WEB Act would bring the FTC in line with

agencies like the Securities and Exchange Commission, which obtained such powers, without a

sunset, more than 25 years ago. 12 Indeed, an SEC official at the hearing described how the SEC

has used its similar authority as the basis for developing a multilateral mutual enforcement

arrangement that handles thousands of requests each year and helps protect American investors

from securities fraud. 13 Like the SEC, the FTC needs the SAFE WEB Act’s tools as part of its

permanent authority so it can continue and expand its current cross-border enforcement efforts to

protect U.S. consumers.

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The FTC should pursue additional mechanisms for enhanced antitrust information

sharing and investigative assistance and seek to overcome foreign barriers to FTC

enforcement.

In today’s interconnected world, the ability of agencies to obtain and share information quickly

and efficiently is critical to cross-border investigations. Participants stressed the importance of

streamlining the processes for obtaining information, including confidential information, and

investigative assistance from counterpart agencies. 14 While the U.S. SAFE WEB Act provides

valuable tools to aid cross-border consumer protection and privacy investigations, the

Commission’s ability to pursue evidence in cross-border antitrust cases is less robust. The FTC

has entered into a network of competition cooperation agreements and memoranda of

understanding that have provided important legal frameworks for cooperation and catalyzed

closer staff relationships. 15 They do not, however, provide for the ability to share confidential

information or to use domestic investigative tools to provide investigative assistance to the other

country’s agency. The International Antitrust Enforcement Assistance Act of 1994 provided the

authority to enter into agreements that would provide those tools through mutual assistance

agreements. 16

However, because various impediments, including statutory and policy-based restrictions on the

ability to use information received from foreign authorities for non-antitrust purposes and in

criminal prosecutions, the FTC and DOJ have been able to conclude only one agreement (with

Australia) pursuant to the Act. The agencies should therefore redouble their efforts to overcome

these obstacles, as, for example, the Securities and Exchange Commission has been able to do in

participating in the Multilateral Memorandum of Understanding of the International

Organization of Securities Commissions (IOSCO). 17 The agencies may also wish to consider

seeking statutory changes that would better enable the agencies to fulfill the goals Congress

intended in enacting the statute.

Panelists also discussed how the growth of privacy and data protection laws internationally

presents challenges for cross-border investigations and cases. They recognized the value of

safeguarding personal data, but expressed concerns that some laws are constraining agencies

from sharing or obtaining, for example, personal information in consumer complaints or

documents that include a company employee’s personal data. At the hearings, several enforcers

described situations when their agencies either wanted to share or obtain information for

enforcement purposes with their counterparts, but were unable to do so because of privacy

laws. 18 They observed that, in some cases, counterpart agencies had confused privacy and

confidentiality laws, or invoked privacy laws as a reason not to share even non-personal, nonconfidential information. 19

Nonetheless, panelists agreed that agencies could overcome such challenges while adhering to

privacy laws. James Dipple-Johnstone, from the UK Information Commissioner’s Office, for

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example, advised agencies to think about “what information do you need, how is it going to be

transmitted, how is it going to be secured, and what purpose is it going to be used for.” 20 In

addition, representatives from securities agencies explained how IOSCO and the European

Securities and Markets Authority entered into an “administrative arrangement” to allow EU

authorities to use the “public interest” exception in the General Data Protection Regulation

(GDPR) to share personal data in securities investigations with non-EU authorities that commit

to data safeguards. 21 Given its expertise in privacy and data security, the FTC should play a lead

role internationally in reducing barriers to information sharing by developing mechanisms for

regulators and enforcers to share information effectively and efficiently while providing strong

protections for consumer data.

The FTC should continue to exercise international leadership, leveraging its expertise

and cross-disciplinary synergies to address emerging issues.

The hearings provided strong support for FTC leadership on antitrust, consumer protection, and

privacy and data security issues in international policy organizations and enforcement

networks. 22

Panelists recognized the FTC’s leadership in promoting sound antitrust enforcement

internationally, and offered suggestions for its continuation and expansion. They cited the FTC’s

role in the International Competition Network (ICN), a network of virtually all of the world’s

competition agencies aimed at promoting convergence toward sound competition policy and

enforcement and cooperation among member agencies. The FTC has led projects resulting in

several important best practice recommendations, including on merger notification and review

procedures and on the assessment of dominance. Most recently, the FTC led the ICN’s project

on due process principles, resulting in Guiding Principles on Procedural Fairness and

Recommended Practices for Investigative Process. Several panelists urged the FTC to continue

its leadership, including in the critical area of due process. The FTC’s leadership in the OECD

and UNCTAD were similarly cited for their positive influence on the development of global

antitrust policies and enforcement. 23

Panelists also commended the FTC’s sharing of its research, policies, and practices with the

international community, including through issuing guidelines and publishing studies. 24 In 2017,

for example, the FTC played a primary role in revising the provisions of the Antitrust Guidelines

for International Enforcement and Cooperation that described the agencies’ policy regarding the

use of extraterritorial remedies, and recommended that other agencies consider adopting the

same approach. 25

The hearings also drew calls for the FTC to expand its leadership efforts in newer international

policy areas. While many jurisdictions are tackling privacy and data security issues for the first

time, the FTC has decades of experience in analyzing privacy issues arising from new consumer-

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facing technologies and bringing enforcement actions that establish strong privacy and data

security norms and practices for businesses. Several panelists urged the FTC to promote these

norms and advance best practices globally, including through interoperable data transfer

frameworks and accountability mechanisms. 26 One panelist from the OECD explained that the

FTC’s understanding of markets makes it “perfectly poised” to lead on issues relating to privacy

and data as a driver of production in the economy. 27

Panelists also identified challenges to FTC leadership, noting the growth of privacy laws and

frameworks in Europe and other foreign jurisdictions. 28 Even without comprehensive U.S.

privacy legislation, panelists agreed that the FTC has an important leadership role to play

internationally. They cited the agency’s broad jurisdiction and history of strong enforcement and

remedies in privacy and data security cases. Some panelists recognized, however, that the FTC

would need help from Congress to maintain U.S. leadership in this area. Echoing the

Commission’s recent Congressional testimony calling for strong, comprehensive privacy

legislation, former Chairman Kovacic called for new U.S. privacy laws with a “comprehensive

FTC mandate with no jurisdictional carve-outs” to ensure the FTC’s continued, effective

international engagement. 29

The FTC should expand on its initiatives to build strong relations with counterparts,

including through its International Technical Assistance and International Fellows

programs.

Panelists urged the FTC to build on its work promoting international convergence and

developing strong enforcement cooperation partnerships by engaging directly with the leadership

and staff of its foreign counterparts in new ways. The agency already fosters these relationships

bilaterally and through regional and multilateral fora, including the OECD, ICN, and ICPEN. In

addition to a continuing focus on case cooperation and dialogue, panelists suggested that the

FTC explore additional opportunities for joint initiatives such as joint workshops and studies,

and more regional engagement to deepen relationships and understanding among agencies.

Panelists also expressed support for the FTC’s International Technical Assistance program and

International Fellows program, characterizing them as valuable tools to build capacity, deepen

cooperation, and promote convergence. For the past thirty years, the FTC has provided technical

assistance to foreign competition and consumer protection agencies, conducting hundreds of

short and long-term training missions and commenting on proposed laws, regulations, and

guidelines. 30 In 2007, the FTC established its International Fellows program based on

authorizing provisions in the SAFE WEB Act. 31 Since then, the agency has hosted over 120

officials from 40 countries for periods of several months and has detailed staff to counterpart

agencies. Several panelists stated that these types of programs help agencies bring their laws and

practices into line with international best practices and strengthen ties between agency

officials. 32 These programs are subject to FTC resource constraints as well as technical

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assistance funding from USAID and other agencies.

The FTC’s experience and expertise should inform U.S. government policies involving

international issues that fall within the FTC’s mandate.

Issues within the FTC’s mandate often involve other U.S. government agencies that,

increasingly, encounter competition, consumer protection, and data privacy concerns in their

international work. These include, for instance, issues of national treatment, due process, and

treatment of intellectual property rights in foreign antitrust enforcement and remedies in foreign

privacy enforcement. Citing the FTC’s experience and expertise in competition, consumer

protection, and data privacy law and policy, panelists expressed support for an appropriate FTC

role in related U.S. government discussions. For example, the FTC could play an important role

when the U.S. government evaluates and responds to foreign legislative or regulatory proposals

that fall within the FTC’s mandate. Panelists noted that the FTC can be an effective advocate

for principles such as consumer welfare, sound economics, and interoperability of systems that

promote U.S. interests and serve American consumers. Based on its expertise and its

constructive relationships with foreign agencies, the FTC can help assess the impact of

prospective foreign government policies and enforcement on competition, consumer protection,

and data privacy law and policy and on U.S. interests. Thus, at the hearing, former Assistant

Attorney General for Antitrust James Rill noted “[w]hatever decisions are being made on

antitrust, the DOJ and the Commission should have a seat at the table.” 33 The FTC has been a

valuable contributor to the U.S. interagency process and can continue to help guide U.S. policy

involving international issues that fall within the FTC’s mandate to best serve the interests of

American consumers.

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APPENDIX

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OPENING REMARKS BY CHAIRMAN JOSEPH

SIMONS

Federal Trade Commission Chairman, Joseph Simons, introduced the two-day session by

recalling that this hearing’s focus on international issues echoes the emphasis on globalization

that motivated the 1995 hearings convened by Chairman Pitofsky. He addressed the effect of

international developments on core areas of the FTC’s international work – enforcement and

policy cooperation – in consumer protection and competition matters.

The Chairman explained the importance of the U.S. SAFE WEB Act for consumer protection

enforcement cooperation in four key areas: information sharing, investigative assistance, crossborder jurisdictional authority, and enforcement relationships. 34 He cited the Act’s “remarkable

success” in responding to 130 information-sharing requests from more than 30 foreign

enforcement agencies since its inception in 2006. In particular, he highlighted the agency’s use

of its SAFE WEB information sharing power in a recent $30 million settlement in sweepstakes

scam case involving cooperation with Canada and the United Kingdom. 35 He called for a

renewal of the U.S. SAFE WEB Act in 2020, without a sunset provision. 36 Chairman Simons

also announced a consumer protection Memorandum of Understanding with the United

Kingdom’s Competition and Markets Authority, which will further support the FTC’s

enforcement cooperation. 37

Chairman Simons referenced other tools that facilitate enforcement cooperation for both

missions such as bilateral and multilateral agreements and arrangements. In competition

enforcement matters, Simons noted that the FTC cooperates “daily with our foreign

counterparts.” 38

The Chairman cited the FTC’s participation and leadership in international networks, including

the International Competition Network and International Consumer Protection and Enforcement

Network, as well as the FTC’s own Technical Assistance and International Fellows programs. 39

He noted that these programs foster “trust-based relations and facilitate the development of best

practices and effective and predictable enforcement cooperation. 40

Chairman Simons welcomed input on “whether there is more the FTC could and should be doing

to promote sound consumer protection, privacy, and competition policy internationally.” 41

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SETTING THE INTERNATIONAL SCENE

Recognizing the “extraordinary” developments of recent decades, former Chairman William

Kovacic (now Professor at the George Washington University Law School and Non-Executive

Director of the United Kingdom’s Competition and Markets Authority) launched the hearings by

highlighting how technology and changes in the global competition, consumer protection, and

privacy landscape have affected the FTC’s role. 42 Kovacic described the dramatic increase in

both foreign legal frameworks and laws and in competition and consumer protection authorities,

and in agencies’ growing, multidimensional mandates. 43 These changes have made the

landscape more complex, but Kovacic noted that they present a “remarkable opportunity to

measure and assess which kinds of practices might be well adopted on a global basis.” 44 He

emphasized the important role that soft law organizations and regional and cross-border

enforcement networks, such as the International Competition Network (ICN) and the

International Consumer Protection Enforcement Network (ICPEN), have played in developing

global best practices and guiding principles. 45

Kovacic explained that the FTC has always dealt with upheaval from new technologies – like the

telephone and “talking picture[s].” 46 He nonetheless opined that “the absolute and relative rate

of technological change is greater now and that’s changed the mix of issues that have come to

the top of the agenda.” 47 He pointed to significant changes in information technologies that have

“lifted the prominence of privacy” and made it the “preeminent regulatory issue of our time.” 48

Kovacic pointed to the European Union’s General Data Protection Regulation (GDPR) as an

extraordinary regulatory development. 49

In the face of such technological and legal changes, Kovacic recognized that many institutions

have already made fundamental structural changes and adopted new tools. 50 He nonetheless

urged government institutions to engage in regular and systematic self-assessments to match the

pace of innovation and change in the commercial sector.

[A] broad lesson we derive from international experience is that if you’re not revisiting the

adequacy of your framework every five years at a minimum, you’re missing a good game and

you’re probably not doing your job properly because the array of changes in the world today

dictate those changes. If commercial institutions are going to be proficient at innovation and

change, the public institutions entrusted with their oversight have to be no less inventive, no less

dynamic, and we see in so many areas globally those changes taking place. 51

–William E. Kovacic,

George Washington University Law School

Kovacic then offered his perspective on how the FTC has adapted to the changing world.

Admitting he was not a “neutral observer,” he highlighted the creation of the FTC’s Office of

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International Affairs (OIA), which consolidated several different work units within the FTC into

a single international office. 52 Describing OIA’s work as “unsurpassed,” the former Chairman

observed that the office constituted “extraordinary” infrastructure that is “indispensable” to

functioning in this “new world of complexity.” 53

Kovacic identified the U.S. SAFE WEB Act as a “key element” of the agency’s response to a

changing world. 54 He explained that, “SAFE WEB created an indispensable element of the

infrastructure that supports international cooperation today” by supporting reciprocal assistance

and bilateral information sharing. 55 It also provides for the International Fellows program, an

exchange program that gives foreign officials an insider perspective on the FTC’s approaches,

and supports the “human glue that holds together international relations.” 56

Kovacic praised the FTC’s Technical Assistance program as a “thoughtful and sustaining”

approach to sharing perspectives from experienced practitioners to case handlers on possible

ways to approach their work. 57 He noted that the FTC had engaged in competition technical

assistance collaborations with Canada, the European Union, Germany, the Organization for Cooperation and Economic Development (OECD), and the United Nations Conference on Trade

and Development (UNCTAD) that represented a “remarkable constellation of common effort.” 58

He also praised the FTC’s close bilateral and multilateral cooperation with Canadian authorities,

describing the Competition Bureau as a “pillar indispensable to the ICN.” 59

Separating what the FTC could do on its own and what it could achieve only with help from

others (such as Congress), Kovacic considered how the FTC might improve its tools and

practices. He called for the agency to be more transparent, advocating for fuller disclosure on

specific matters (i.e., explaining why it declined to take further steps after an investigation) and

on the overall purposes of its programs.

Kovacic also urged the agency to sustain its commitment to OIA and the international mission. 60

He encouraged the FTC to pursue self-reflection by seeking the insights of its international

counterparts as to what worked well and what could be improved. 61 He recommended that the

FTC do better job of explaining its activities and operation to the world. 62 He advocated

including information on the agency’s infrastructure (e.g., its administrative processes,

information management systems, and ethics and conflict of interest policies) in technical

assistance trainings. 63 This would increase “understanding [abroad] of how policy is made

here.” 64 Kovacic highlighted overcoming the common misperception that the United States

lacks a privacy regime, stating that although it may not be as comprehensive as other systems,

“[I]t does [exist], and . . . where it exists, it can bite you pretty hard.” 65

Turning to what the FTC could improve with the help of others, Kovacic urged more

coordination with domestic agencies so the world knows who speaks for the United States on

areas of shared jurisdiction. He urged the FTC and the DOJ to communicate in advance of

giving speeches or making policy announcements in competition matters. Kovacic also pointed

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to the extraordinarily close U.S. relationship with its Canadian counterparts as a model to extend

to other similar regimes such as those of the United Kingdom, Australia, New Zealand, and

Singapore. 66 He noted the work that went into forging this bond, a process of learning, “meeting

after meeting” to understand each system and who does what. 67 He also advised that agencies

could work together even more effectively by collaborating on prototypes that could be rolled

out to others, engaging in case retrospectives on commonly examined targets, and conducting

joint studies. 68

Kovacic concluded by explaining how Congress could help the FTC achieve its goals. First, he

urged Congress to “renew SAFE WEB with no footnotes attached – unconditional, permanent

renewal.” 69 Second, he called for new privacy laws with a “comprehensive FTC mandate with

no jurisdictional carve-outs,” explaining “[i]t’s impossible to engage effectively internationally if

that change doesn't take place.” 70 Kovacic concluded by calling on the FTC to focus more on

infrastructure than “ribbon cutting opportunities” because such investments are “indispensable in

this multi-polar, complex world . . . .” 71

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SUMMARY OF PANEL 1: Building Enforcement

Cooperation for the 21st Century

Recognizing that “the digital economy is the economy,” panelists delved into the effects of rapid

technological change and globalization on the FTC and its foreign counterparts. 72 In his

introductory remarks, Matthew Boswell, Canada’s Competition Commissioner, emphasized that

commerce – and therefore consumer protection and competition enforcement – is not limited by

borders. He called for more cooperation to approach new challenges and noted the need for

timely agency action in a fast-moving digital economy. 73

The other panelists echoed Commissioner Boswell’s call and recommended streamlining

cooperation procedures. They observed that enhanced cooperation leads to increased detection

and deterrence of unlawful conduct. They recognized the value of sharing best practices:

efficiencies for agencies, better protections for consumers, and less risk and uncertainty for

businesses. 74

The panelists also discussed the range of cooperation mechanisms. Some spoke about the role

that informal mechanisms play in developing trust and understanding among agency staff and

officials. Thomas Barnett, who served as the Assistant Attorney General for Antitrust at the

Department of Justice, emphasized the value of “personal, human interaction,” noting that the

relationships he developed with foreign enforcers in networks such as the International

Competition Network (ICN) facilitated “cooperation on some specific enforcement matters that

might have been challenging if those relationships didn't exist.” 75 Others lauded the value of

staff exchanges and technical assistance programs, such as resident advisors and seminars.

Chilufya Sampa, Executive Director and CEO of Zambia’s Competition and Consumer

Protection Commission, explained that these types of interactions with the FTC and other

experienced agencies had helped the Zambian agency mature and become the first African

president of the International Consumer Protection and Enforcement Network (ICPEN). 76

More and more, the conduct we investigate is not constrained by borders, and when change

happens, the question is not how do we feel about it; the question is how will we respond to it.

Will we rise to the challenge? Will we seize the opportunities that come with it? These are

questions that governments around the world are facing, and how we answer these questions will

define our success going forward. 77

–Matthew Boswell,

Competition Bureau Canada

Panelists also addressed the role of informal networks like ICN and ICPEN. Sampa stated that

the ICN’s Framework for Merger Review Cooperation enabled his agency to share nonP a g e 16

The FTC’s Role in a Changing World: Staff Recommendations and Report

confidential information with other competition agencies investigating the same merger

transaction. 78 Commissioner Boswell spoke about the U.S.-Canada cross-border regional

partnerships that collaborate cross-border on mass-marketing fraud investigations. 79 Sampa also

noted the importance of regional enforcement networks such as the African trading blocs’

regional competition and consumer protection authorities. 80

The panelists discussed formal arrangements such as Memorandum of Understanding (MOUs)

and international agreements. They concurred that Mutual Legal Assistance Treaties (MLATs)

used in criminal matters could be cumbersome and slow, and viewed other agreements as more

efficient. Commissioner Boswell pointed to the 1995 international agreement on competition

and deceptive marketing practices between the United States and Canada as a successful “high

level framework for our positive cooperative relationship.” 81 Jean-François Fortin, Executive

Director of Quebec’s securities authority and chair of the International Organization of Securities

Commissions (IOSCO) Enforcement and Information Exchange Committee, spoke about the

IOSCO Multilateral Memorandum of Understanding (MMOU), which provides the basis for

enforcement cooperation among securities regulators; the MMOU has 121 of 149 possible

signatories. 82 To join the MMOU, securities authorities must have the legal capacity to share

confidential information with foreign counterparts as well as the power to compel the production

of information (such as bank and beneficial ownership records) and obtain testimony for foreign

regulators. 83 In 2017, there were 4,803 requests for assistance under the MMOU. 84 Fortin said

that the MMOU made cooperation “really efficient,” stating, “[o]bviously if you have to go and

compel information and testimony and documents [it] can take some time, but if you have the

information, literally, requests for information can be answered within weeks, if not days, and in

urgent matters, it happens in a few hours.” 85

Focusing on legal authority, Commissioner Boswell stressed the importance of having laws that

allow agencies to work together. 86 He described the FTC’s U.S. SAFE WEB Act investigative

assistance authority as an “incredibly valuable tool” that helped the Competition Bureau obtain

information for multiple consumer protection matters, including for its litigation involving

wireless carriers’ deceptive practices in premium text messaging services. 87 He highlighted two

Canadian laws: (i) the Canada Anti-Spam Law, modeled on the U.S. SAFE WEB Act, which

allows the Bureau to use its investigative powers to assist foreign partners in certain deceptive

marketing cases without requiring that it have an investigation into the same matter; and (ii)

Article 29 of the Competition Act, which authorizes the Bureau to share confidential information

for the administration or enforcement of the Act, even without party waivers. 88 Sampa agreed

that agencies need strong domestic authority, explaining that 20 African agencies had adopted a

set of principles to facilitate cross-border cooperation – the Livingstone Principles (also based on

the U.S. SAFE WEB Act) – that recognize agencies’ need for effective enforcement powers. 89

The panelists addressed the effect of data protection and privacy laws on information sharing. 90

Both Commissioner Boswell and Sampa described situations when their agencies wanted to

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either share or obtain information for enforcement purposes but were unable to do so. 91 Sampa

noted that, in certain cases, counterpart agencies had cited privacy laws as a basis not to share

even non-personal, non-confidential information. 92 Fortin explained that IOSCO members faced

similar challenges in connection with the European Union’s General Data Protection Regulation

(GDPR). 93 In response, IOSCO and the European Securities Market Authority entered into an

“administrative arrangement” that allows EU authorities to use the GDPR’s “public interest”

exception to share personal data in securities investigations with non-EU authorities that commit

to data safeguards. 94 Sampa noted that his agency had entered into an MOU with South African

agencies to enable them to share personal and confidential information. 95

Finally, looking to the future, some panelists advocated for better implementation of existing

tools that facilitate cooperation, including identifying ways to improve their efficiency and

timeliness. 96 Others raised the possibility of the ICN and ICPEN developing new multilateral

arrangements along the IOSCO MMOU model, or considering pursuing multi-agency joint

investigations. 97 All panelists concurred on the importance of having agencies work together to

encourage and strengthen cooperation around the world. 98

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SUMMARY OF PANEL 2: Consumer Protection

and Privacy Enforcement Cooperation

The main theme emerging from this wide-ranging panel was the importance of robust

enforcement cooperation in tackling technology-enabled consumer frauds, misleading

commercial practices, and data privacy challenges. The panelists discussed bilateral,

multilateral, and regional (i.e., European Union and the Asia Pacific Economic Cooperation

(APEC)) mechanisms, as well as ways to strengthen cooperation. 99

James Dipple-Johnstone, Deputy Commissioner of the United Kingdom’s Information

Commissioner’s Office (ICO), started with privacy enforcement cooperation. He reported that

the ICO has worked with 50 international counterparts over the past year through information

and intelligence sharing, staff exchanges, and joint investigations on a “complex and challenging

caseload” including the Cambridge Analytica investigation. 100 Dipple-Johnstone highlighted the

ICO’s cooperation with the FTC, noting that the agencies had used their respective information

sharing powers – the FTC’s SAFE WEB Act and the ICO’s Data Protection Act of 2018 (DPA

2018) – in multiple matters. 101 Dipple-Johnstone described the FTC’s SAFE WEB investigative

assistance provisions, which allow the agency to issue compulsory process on behalf of a foreign

authority (e.g., robocalls, Ashley Madison) as a “huge positive” for the ICO. 102 The FTC’s

assistance allowed the ICO to “fill in the missing pieces” and helped it “make better

investigations.” 103 Dipple-Johnstone also mentioned the Global Privacy Enforcement Network

(GPEN), the International Conference of Privacy and Data Commissioners (ICPDPC), and the

Unsolicited Communications Enforcement Network, explaining that these networks provide

participants with a shared understanding that “allows us to do our jobs more effectively.” 104

[T]he enforcement power and the international cooperation authority granted to the FTC under

the SAFE WEB Act are both integral to the functioning of [data transfer] frameworks . . .

Without them, they would lack legitimacy or credibility. 105

–James Sullivan,

International Trade Administration

James Sullivan, the Deputy Assistant Secretary for Services at the U.S. Department of

Commerce’s International Trade Administration focused on enforcement cooperation within the

context of the (recently invalidated) EU-U.S. Privacy Shield Frameworks and APEC’s Cross

Border Privacy Rules system (APEC CBPR). 106 These frameworks, developed to bridge

differences in countries’ privacy approaches, facilitate valuable international data flows by

protecting personal data in accordance with internationally recognized privacy and data

protection principles. 107 Sullivan explained the frameworks include compliance, dispute

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resolution, and enforcement components; for example, APEC CBPR economies have to join a

cross-border privacy enforcement arrangement to ensure cooperation and collaboration among

their designated enforcement authorities. 108 Sullivan emphasized that though a company’s

adherence to the frameworks is voluntary, the FTC may take (and has taken) enforcement action

against false claims made in connection with either of these frameworks. 109 He stated that the

FTC’s SAFE WEB authority is “integral” to the functioning of these international frameworks,

noting that it would be difficult to ensure that companies comply with their commitments under

the three data transfer frameworks without the FTC’s “powers to enforce and coordinate with

other enforcement agencies cross-border.” 110 Sullivan added that business stakeholders, as well

as foreign governments, want to see “strong frameworks that are actually enforceable, and they

do want to see . . . greater collaboration because that’s going to lead to more consistent best

practices or principles and approaches to a lot of these issues . . . .” 111

On consumer protection, Marie-Paule Benassi, the Acting Director for Consumer Affairs, DG

Justice and Consumers, European Commission, discussed coordination among member states

within the European Union. Although the substance of consumer laws in EU countries is mostly

“harmonized,” the implementation and enforcement of those laws is not. 112 As a result, Benassi

explained, the European Commission (EC) has traditionally played an important role in

facilitating bilateral cooperation between member states. More recently, the European Union

adopted a new Consumer Protection Cooperation Regulation, which gives the EC a stronger

coordination role in addressing illegal practices by large companies that operate throughout the

European Union. 113 It has also recently adopted new legislation to permit fines for these types of

“EU-level infringements.” 114 Benassi used the EC’s recent “common position” against the five

largest car rental companies in the European Union as an example. 115 There, the EC, working

with the member states, analyzed the practices of top five car rental companies, wrote a common

position asking the companies to change practices, and then obtained negotiated commitments

from the companies. 116

[C]ross-border fraud continues to be a threat to the economic integrity of Canada and the U.S.

[given how] voice-over-net protocols, social media, virtual currencies, money service

businesses, and other key facilitators continue to provide criminals . . . opportunities to operate

across multiple international jurisdictions.117

–Jeff Thomson,

Canadian Anti-Fraud Centre

Turning to North America, Jeff Thomson, Senior Intelligence Analyst at the Canadian AntiFraud Centre (CAFC) of the Royal Canadian Mounted Police (RCMP), highlighted the crossborder strategic partnerships on mass-marketing fraud. 118 The partnerships, which date back to

1997 when cross-border telemarketing fraud became a major concern for the United States and

Canada, have representatives from civil, criminal, and regulatory agencies such as the FTC, the

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U.S. Postal Inspection Service, the RCMP, and the Competition Bureau Canada (as well as local

police and consumer agencies). 119 They share intelligence, often from their respective central

databases (e.g., Consumer Sentinel and the CAFC), coordinate joint priority setting, appoint lead

agencies for investigations, and identify investigative assistance needs and actions. 120 They help

to establish “common trust and understanding amongst the partners to share information within

the confines of law” and create “a platform to share and synthesize information from multiple

perspectives.” 121

Thomson also highlighted the Memorandum of Understanding between the FTC and the RCMP

and both agencies’ participation in the International Mass Marketing Fraud Working Group. 122

In particular, he emphasized the key role of FTC investigative assistance under the SAFE WEB

Act for the strategic partnerships, stating, “This [A]ct alone has assisted [the] strategic

partnerships in countless cases, at least 22 by my count since 2007 . . . .” 123 The cooperation in

these cases helped lead to arrests, civil charges and forfeitures, and restitution and redress for

consumers in both countries. 124

Next, noting that, “investor protection is essentially the same concept [as consumer protection],”

Kurt Gresenz, the Senior Assistant Director at the U.S. Securities and Exchange Commission’s

Office of International Affairs (SEC), provided the securities enforcement perspective. 125 He

explained that the International Organization of Securities Commissions (IOSCO) requires

securities regulators to have certain minimum powers including the ability to share information

across borders for enforcement purposes through its Multilateral Memorandum of Understanding

(MMOU). 126 Consistent with the MMOU, the SEC has long had the statutory authority to: (i)

give access to confidential information to requestors, including foreign agencies, that can

demonstrate need and the ability to maintain confidentiality; (ii) use the SEC’s compulsory

process on behalf of a foreign authority (even for conduct that would not violate U.S. law); and

(iii) provide protections from disclosure for information received from foreign securities

authorities, including the ability to protect in litigation any material that would be privileged in

the foreign jurisdiction. 127 Most national legislatures in IOSCO member countries have made

similar amendments to their domestic law to enable them to meet the MMOU standards. 128 The

SEC’s ability to use the MMOU to obtain information for its matters is critical because the SEC

often investigates entities that are incorporated in two or three different jurisdictions, targeting

victims in multiple countries (e.g., the United States, the United Kingdom, and Australia) and

storing their documents in the cloud or yet other jurisdictions. 129 Indeed, Gresenz indicated that

the SEC makes around 600-800 of the 5,000 requests processed under the MMOU each year. 130

The panelists also discussed challenges to enforcement cooperation, including whether privacy

laws such as the European Union’s General Data Protection Regulation (GDPR) present barriers.

Dipple-Johnstone observed that though privacy regulations can impose challenges, there are

often ways to overcome them. 131 He advised agencies to think about “what information do you

need, how is it going to be transmitted, how is it going to be secured, and what purpose is it

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going to be used for.” 132 Benassi added that it is important to distinguish between privacy

concerns and the need to maintain the confidentiality of investigative information. 133 She

explained that the GDPR facilitates information exchange within the European Union, and

opined that the GDPR could be an “enabler” for international cooperation because it clarifies

what authorities can exchange information, even when that information contains personal

data. 134 Gresenz highlighted the new “administrative arrangement” that IOSCO developed to

enable the transfer of personal data, consistent with the GDPR, between EU securities authorities

and other non-EU IOSCO members who join the arrangement. 135

Finally, panelists identified additional challenges and some potential solutions. Thomson noted

that criminal law enforcement authorities often do not prioritize fraud and financial crime. 136 He

suggested focusing on an “intelligence-led” approach to “start driving enforcement action in a

more targeted and effective manner.” 137 He suggested strengthening “disruption” – cooperating

with private sector partners to block and shut down subscription traps, continuity schemes, and

counterfeit sales of goods online – internationally. 138 Gresenz noted challenges arising from

jurisdictions that allow for more latitude regarding certain practices or have a more restrictive

approach to information sharing. 139 These differences, which are often exploited by bad actors

when they choose where to operate or keep their ill-gotten gains, result in investigations that may

not only move at different paces but lack international cooperation. 140 Sullivan observed that

because it was unlikely that countries would adopt a global standard for data privacy, countries

could figure out how to make different regimes work together through “flexible” and

“adapt[able]” approaches like APEC’s interoperability approach – and through interoperability

between APEC and GDPR. 141 Benassi concurred, stating that it would also be difficult to have a

single, harmonized approach for consumer protection, stating that the way forward could be

through “practical enforcement tools” like the common action and through high-level

principles. 142 She also noted that the “internationalization” of fraud on the Internet and large

online platforms is “becoming a very big problem in terms of the harm caused to consumers” and

suggested prioritizing. 143 Benassi also pointed to “new types of misleading practices” arising

from “data economics,” and suggested building links between competition, data protection, and

consumer protection to understand potential consumer harm. 144 Dipple-Johnstone ended the

session, noting the need to “support innovation in a practical sense” by keeping updated on the

“vast changes” in the technology landscape to avoid becoming the “ministries of no.” 145 He also

stressed maintaining the right links internationally and coordinating with domestic authorities

“so that the offer we can make internationally is the right one.” 146

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SUMMARY OF PANEL 3: Competition

Enforcement Cooperation

Panelists from foreign competition agencies and the private bar offered perspectives on

enforcement cooperation among competition agencies. Panelists were unanimous in

emphasizing that competition agencies must prioritize international case cooperation, especially

given today’s global economy. 147

Panelists agreed that both competition agencies and businesses benefit from case cooperation

among competition agencies. 148 From the agency perspective, case cooperation can encourage

sharing ideas and approaches, which can lead to a greater understanding of the salient issues, less

duplication, and greater efficiency. 149 Panelists credited case discussions among cooperating

agencies for streamlining existing investigations and preventing fruitless ones. 150 Case

cooperation can also increase the overall effectiveness of enforcement while decreasing the

likelihood of conflicting outcomes. 151 As Nicholas Banasevic, Head of Unit responsible for

antitrust in the field of IT, the internet, and consumer electronics at the European Commission’s

Directorate-General for Competition, observed, cooperation not only “bring[s] organic benefits

to an . . . individual case,” but also helps generate a more broad-based understanding of policy

and procedural similarities and differences. 152 Likewise, businesses benefit from case

cooperation because it contributes to more focused, less burdensome investigations, and more

predictable, consistent, and timely outcomes. 153 In her experience, Fiona Schaeffer, a partner at

Millbank LLP, has found that case cooperation has “expedited, not prolonged, the [agencies’]

review” and has not “started new lines of attack that didn’t exist before.” 154

Enforcers have to respond to the pace of change and globalization by working more closely

together. . . . We need to do this for three reasons. Firstly, because . . . we will facilitate more

efficient commerce. Secondly . . . we’ll be more effectively able to police compliance with laws

in our jurisdiction. And, finally, because we’ve got scarce resources and working together is

likely to prevent us from reworking issues, from seeking to reinvent the wheel or overlapping

each other’s work. 155

–Marcus Bezzi,

Australian Competition and Consumer Commission

Panelists identified specific examples of close case cooperation among competition agencies

yielding tangible benefits. 156 Jeanne Pratt, Senior Deputy Commissioner at the Canadian

Competition Bureau (CCB), explained that her agency has participated in joint interviews and

has coordinated with other agencies on remedies. 157 Remedy coordination has resulted in the

CCB’s appointing common monitors with other agencies and even foregoing its own remedies

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when another agency’s remedies addressed the CCB’s concerns. 158 With regard to forbearance,

Marcus Bezzi, Executive Director at the Australian Competition and Consumer Commission

(ACCC), said that his agency also has relied on a foreign agency’s remedy by accepting an

“enforceable undertaking,” whereby a party commits to the ACCC that it will abide by the

foreign agency’s remedy. 159 Banasevic credited discussions with the U.S. Department of Justice

during its Microsoft investigation for leading to more complementary remedies, and discussions

with the FTC relating to standard essential patents contributing to more consistent approaches to

cases and related policies. 160

Panelists agreed that informal exchanges between agency staff are the most common and useful

case cooperation tool. 161 Those discussions can usually include agency non-public information

(information that that agencies are not statutorily prohibited from disclosing but normally treat as

non-public) covering topics like investigative approaches, theories of harm, market definition,

and a high-level discussion of remedies. 162 In many instances, that level of information

exchange is sufficient. 163 However, in some cases agencies may seek waivers of confidentiality

from the parties to allow more in-depth cooperation, including detailed remedies discussions, in

order to facilitate a more effective and efficient investigation. 164

In addition to informal case cooperation, panelists addressed the role of formal investigative case

cooperation agreements. 165 Several panelists indicated that while formal agreements, such as

Mutual Legal Assistance Treaties (MLATs), can be theoretically useful, especially when

materials are only available in another jurisdiction, using some of the existing arrangements can

be slow and cumbersome. 166 Bezzi acknowledged that the U.S.-Australia Mutual Antitrust

Enforcement Assistance Agreement, which allows the exchange of confidential information and

the provision of investigative assistance, has rarely been invoked formally. 167 Banasevic noted a

comparable experience with the similar “second-generation” cooperation agreement between the

European Union and Switzerland. 168 But both panelists noted that those agreements had

nonetheless enabled greater case cooperation, including by encouraging the production of

documents and/or the provision of waivers. 169 As Bezzi explained, the “formal arrangements

really do enhance the informal.” 170

For second-generation cooperation agreements to be more effective, panelists believed that the

agreements would need to streamline the process for obtaining information and investigative

assistance from a counterpart agency, including shorter timeframes. 171 Bezzi cited the

International Organization of Securities Commissions’ Multilateral Memorandum of

Understanding (MMOU) as providing a model for engagement “in days or weeks rather than

months or years.” 172 He highlighted the value of the U.S.-Australia agreement’s provisions on

investigative assistance, but agreed that such assistance is more common in consumer protection

matters, through the U.S. SAFE WEB Act and related statutes. 173

Panelists highlighted that regardless of the means, case cooperation relies on establishing trusting

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relationships between the staffs and senior management at the two cooperating agencies. 174 For

cooperation to be valuable, agencies must be comfortable that their counterparts are honest in

their communications and will protect the confidentiality of the information they share. 175

Additionally, in cases involving remedy cooperation and comity, agencies must believe that their

counterparts will enforce their remedies. 176 Pratt suggested, however, that case cooperation

alone may not be enough to build those connections as well as a broader understanding of each

agency’s framework and approach. 177 To accomplish those important goals, she encouraged

developing deeper interagency ties through staff interactions and joint initiatives outside of the

context of specific cases, including through joint workshops and staff exchanges. 178

Informal cooperation tools . . . only work if you’ve got trust in the legitimacy, the competence,

the candor and, frankly, the ethics of your counterparts in the other agency. 179

–Jeanne Pratt,

Competition Bureau Canada

While there was a general appreciation that cooperation benefits both agencies and parties,

panelists identified several additional areas for improvement. One challenge to further case

cooperation is the variations in agency processes and timetables that can render coordination,

especially on remedies, difficult. 180 While parties can try to coordinate merger filings to avoid

this outcome, they may not always succeed. 181 Some practitioners also expressed concern that

case cooperation may result in a longer review if agencies accommodate the schedule of the

slowest reviewing agency. 182 Agencies understand that these issues deserve further attention.

Another possible hurdle is that while parties commonly grant waivers in merger investigations,

they are often reluctant to do so in conduct cases. 183 Schaeffer explained that parties are

concerned about providing waivers in conduct cases because of the potential for disclosure and

greater risk that documents may become available in private litigation through discovery. 184 Yet

some jurisdictions, including the United States, have laws that provide a higher level of

protection for materials received from other agencies than from parties, which can help alleviate

this concern. 185 Finally, panelists identified duplicative investigations and remedies as

potentially straining both agency and company resources. 186 Agency panelists stressed that

given limited resources, they are trying their best to avoid unnecessary overlap, including by

deferring when another agency’s remedy addresses a shared concern, and focusing on issues of

greatest relevance in their jurisdiction. 187 Agencies and parties appear committed to working

together to develop new case cooperation tools and approaches to ensure effective and efficient

investigations, including, for example, exploring the possibility of more party discussions

involving multiple agencies simultaneously rather than the traditional approach where parties

speak to each agency separately. 188

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SUMMARY OF PANEL 4: International

Engagement and Emerging Technologies:

Artificial Intelligence Case Study

Recognizing that emerging technologies such as artificial intelligence (AI) are among the most

important global developments of our time, a diverse group of experts discussed competition,

consumer protection, and privacy challenges they can raise. The session used a “case study”

approach to artificial intelligence to tackle two questions about how the FTC should deal with

emerging technologies in an international context:

•

How can the FTC best work with foreign agencies to develop effective policies on

competition, consumer protection, and privacy concerning emerging technologies, such as

AI? What are the challenges?

•

From a practical perspective, what are the consequences of having differing approaches

internationally to competition, consumer protection, and privacy enforcement regarding AI

and other emerging technologies?

Former FTC Commissioner Julie Brill, now Corporate Vice President and Deputy General

Counsel for Global Privacy and Regulatory Affairs at Microsoft, introduced the topic by

emphasizing the importance of building consumer trust in new technologies. She outlined six

ethical AI principles Microsoft adopted to foster trust: transparency, accountability, fairness,

reliability and safety, privacy and security, and inclusiveness. 189 Brill explained, however, that

“the issues at stake are simply too large and too important to be left solely to the private sector,”

and require a new foundation of laws, particularly privacy laws. 190

Rapid progress in the field of artificial intelligence has delivered us to the threshold of a new era

of computing that will transform every field of human endeavor . . . . Yet, history teaches us that

change of this magnitude has always come with deep doubts and uncertainty. 191

–Julie Brill,

Microsoft Corporation

Brill suggested that modern privacy laws must adjust to meet consumers’ needs, embracing the

reality that “people expect to use digital tools and technologies to engage freely and safely with

each other . . .” and that they expect “to be empowered to control how their personal information

is used.” 192 Brill explained that achieving a framework of well-designed laws will require the

FTC and other U.S. government agencies to engage in ongoing discussions and consultations,

including gatherings such as these hearings, across governments and across sectors. 193 She said

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the new framework should be “embedded at the U.S. Federal Trade Commission,” and address

AI specifically, for example, by regulations on facial recognition technology. 194

Following Brill’s remarks, panelists provided international perspectives on consumer trust,

agency expertise, regulation, and international cooperation. Deputy Commissioner of the UK

Information Commissioner’s Office (ICO), James Dipple-Johnstone stated that regulators “must

think about accountability, fairness, and transparency . . . to make sure that our citizens can have

confidence in the rollout of AI, because if there isn’t confidence, I think that’s where we’re going

to have challenges.” 195

Chinmayi Arun, Fellow at the Harvard Berkman Klein Center for Internet & Society and

Assistant Professor of Law at the National Law University in Delhi, agreed that consumer trust is

an important issue. She described the policy debates in India, which serves as a hub for

numerous global technology companies and produces valuable commercial and state-generated

data sets. Arun said that there are proposals for a new Indian privacy law containing data

localization provisions, an amendment to the Information Technology Act, and debates about the

right to privacy in the context of state surveillance and state protection of the public. 196 “[T]he

big tension really is that, on one hand, the policymakers want to leverage this [AI] and have this

data and . . . learn from it and, on the other . . . the question of the privacy rights of Indian

citizens and especially of marginalized citizens, people who are not able to assert their

[consumer] rights . . . .” 197

Other panelists raised similar concerns. Francis Kariuki, Director General of the Competition

Authority of Kenya and Chairman of the African Competition Forum discussed AI’s potential

positive and negative effects on competition and consumer protection in Africa. For example, he

explained that AI is leading to more efficiency and greater transparency of pricing compared to

traditional retail sales channels, which could improve consumer choice. 198 In Kenya, AI enabled

the recent expansion of financial services and insurance to people who previously did not have

access. 199 However, there are also potential risks emanating from AI platform design, including

favoring certain market participants over others. 200

The panelists stressed the need for interdisciplinary collaboration among domestic and

international agencies on research and policy development. Dipple-Johnstone emphasized that it

is crucial that regulators keep up to date and work with others, within their own countries and

internationally, as they face common issues. 201 Marcela Mattiuzzo, a partner at VMCA

Advogados in Brazil, reported that Brazil’s CADE, together with agencies from other BRICS

countries, is engaged in a broad study of the digital economy. 202

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[T]his was really a strong message for the government that was negotiating . . . on privacy that

maybe there was a competitive issue, maybe privacy is good and [to] be protected, but beware of

the way you do it. 203

–Isabelle de Silva,

Autorité de la concurrence

Isabelle de Silva, President and Member of the Board of the French competition agency, Autorité

de la concurrence, reinforced the need for agencies to invest in understanding how data, artificial

intelligence, and algorithms affect the competitive process. She described her agency’s use of

sectoral inquiries, hearings and conferences, and joint studies with other agencies – including

one on closed ecosystems with the UK Competition and Markets Authority and another on big

data with Germany’s Bundeskartellamt – to enhance the Autorité’s understanding. 204 Echoing

Mattiuzzo’s identification of the cross-cutting impact of AI, de Silva described a program

developed in France that connects her agency with privacy, telecommunications, and media

regulators to exchange knowledge and ideas about AI. 205 She pointed also to work in the OECD

and ICN on digital issues. 206 In a separate joint research project with the German competition

agency, the Autorité is researching whether algorithms could have an anticompetitive impact; the

project examines questions of detection, enforcement, and the feasibility of an effects-based

analysis. 207

Omer Tene, Vice President and Chief Knowledge Officer of the International Association of

Privacy Professionals, Affiliate Scholar at Stanford University, and Senior Fellow at the Future

of Privacy Forum, added an industry perspective to the discussion. He highlighted the

challenges of regulating complex technology that even some AI creators cannot explain fully,

calling this the “black box issue, the explainability, transparency problem.” 208 Tene also

suggested that regulators need to start thinking about group privacy and not necessarily

individual privacy – i.e., where groups are affected by certain health-related, financial, and other

AI models or systems. 209

Panelists discussed areas of research that could aid in the understanding of the challenges and the

opportunities presented by these new and emerging technologies. 210 Panelists turned to a

discussion of the GDPR, with Dipple-Johnstone noting that while it helps move the law in the

right direction, there are differences in interpretation among EU member states. 211 He called for

“innovation with privacy, not innovation versus privacy,” and opined that “companies will want

to develop these systems as will governments to help them make efficient use of their data sets

and their technologies. But it’s how that’s done responsibly with accountability and

transparency.” 212

The panel concluded with a discussion of cooperation and convergence in addressing AI.

Dipple-Johnstone pointed to the work of the ICDPPC and their Declaration on Ethics and Data

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Protection in AI as a move towards convergence. 213 He cautioned that cooperation, despite

abundant goodwill, is a challenge and stressed the importance of cross-sector cooperation both

within each country and internationally. 214 Kariuki noted a “convergence in the problems which

are facing us,” namely discrimination, access to markets, information asymmetry for both

consumers and competing firms, data privacy, and data portability. 215 Mattiuzzo outlined

potential difficulties in attaining international convergence, or a policy that unites the many

fields of law that are connected to AI, including antitrust, consumer protection, and privacy. She

noted that Brazil adopted new data protection legislation in August 2018 that touches upon many

AI issues. 216 She also noted that because much of the technology in question is used globally,

laws addressing issues in one jurisdiction could affect market practices elsewhere, potentially

contributing to greater convergence, and offered the example of convergence on procedural

issues in the antitrust world as a possible starting point for AI. 217 De Silva praised FTC-EC

cooperation on cases and proposed more coordination and sharing related to sectoral inquiries.

She highlighted the participation of the business community and companies that adopted the

GDPR. 218 Tene noted that companies seek uniform standards that can be adopted globally

because multiple and potentially conflicting regulations across jurisdictions may require

businesses to design multiple systems, frameworks, and products and “break the internet into a

splinternet.” 219 He called for a joint effort to implement policy choices through “mapping data

flows and doing risk assessments and imposing accountability requirements and data

governance, so that new technologies are used not only to infringe on but also to protect

privacy.” 220

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REMARKS BY COMMISSIONER NOAH PHILLIPS

FTC Commissioner Noah Phillips opened day two of hearings on the FTC’s role in a changing

world. He began by noting that the FTC’s international efforts – both antitrust and consumer

protection – are critical not only to the agency’s success, but are “important to the United States

and to the well-being of consumers around the globe.” 221

Commissioner Phillips explained that the FTC’s mission as a consumer protection, privacy, and

antitrust agency has international ramifications. He cited the need to work with international

partners to bring enforcement actions that end cross border scams, frauds, and other activities

that harm consumers. 222 He expressed a desire to see the FTC continue to work towards the

interoperability of data privacy regimes that support privacy and the benefits that consumers

derive from international data flows. 223 On competition enforcement, he explained the need for

close enforcement cooperation with foreign counterparts to share information and avoid

impairing each other’s ability to vindicate domestic antitrust laws. 224 Given these ramifications,

Commissioner Phillips emphasized the need to have strong tools that enable cooperation and

coordination. Most notably, he stressed the importance of renewing and making permanent the

U.S. SAFE WEB Act, a critical tool that the FTC uses to work with its international partners. 225

He noted the importance of active FTC participation in organizations like the OECD and the

International Competition Network to engage in substantive discussions, share our experiences,

and shape the development of international best practices. 226

Close enforcement cooperation and strong international relationships are integral to the FTC’s

mission in a global economy. Commissioner Phillips explained that unwarranted inconsistencies

in parallel enforcement actions could raise serious concerns and undermine shared global efforts

to protect competition and consumers. 227 He cited procedural differences that can lead to due

process concerns and divergent policies abroad that dilute promoting competition for other

values like supporting national champions as potential impediments to sound enforcement,

robust international commerce, and ultimately economic growth. 228

Contemplating the FTC’s dedication to and leadership in international consumer protection,

privacy, and competition initiatives, Commissioner Phillips concluded, “[o]ur reputation as

thoughtful, rigorous enforcers depends on our continued commitment to bring solid cases,

following due process, and advocating domestically and globally.” 229

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SUMMARY OF PANEL 5: Implications of

Different Legal Traditions and Regimes for

International Cooperation

In today’s interconnected world, enforcement agencies in different countries with diverse

institutional and legal systems often confront similar issues, for example, in reviewing a global

merger, dealing with trans-national-border fraud, or privacy rights involving data transferred

across borders. This panel examined differences in domestic legal traditions and institutional

design affecting competition, consumer protection, and data protection agencies, the implications

of those differences for cooperation, and whether and how those differences may be narrowing.

Panelists also offered recommendations for how the FTC could address some of these

differences.

In his introductory remarks, Roger Alford, Deputy Assistant Attorney General in the U.S.

Department of Justice’s Antitrust Division, laid the foundation for the panel discussion by

recognizing that it is important for effective international cooperation that agencies better

understand the legal context in which their counterpart agencies operate. 230 He explained that

differences in laws and procedures “can be noteworthy, and these differences also can have a real

impact on decision-making by agencies in their respective systems.” 231 For example, Alford

noted that agencies in administrative systems based on civil law often have greater discretion

over the types of evidence considered. 232 He observed that while enforcement decisions in both

systems are typically subject to court review, differences in agency burdens of proof and

standards of review can lead to different dynamics in enforcement decisions. 233 In particular, he

highlighted that civil law courts tended to be more deferential to administrative agencies, which

“on the margins . . . tends to create a lower threshold for bringing enforcement actions.” 234

Despite these differences as well as others, Alford found that agencies regularly reach common

ground on fundamental issues of antitrust enforcement. He closed with an example of successful

international cooperation across different systems, identifying recent multilateral work on due

process in competition law investigations as reflecting the growing consensus among

competition agencies regarding the importance of due process protections and sound

procedures. 235

There is nothing inherently wrong [with different legal systems and approaches], but

recognizing these differences will help agencies in different systems better understand each

other. Indeed, having different systems in place, which may at times reach different results,

creates incentives for agencies to critically assess their own work. 236

–Roger Alford,

U.S. Department of Justice

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Panelists agreed that although agencies often pursue the same overarching goals, differences in

legal regimes and structure can affect case and policy outcomes. 237 They recognized that

understanding these differences and the impact they may have on process and outcomes can play

an important role in facilitating interagency cooperation. 238 Panelists identified a range of

sources for these differences. Some involve broad, fundamental differences in legal systems,

such as whether a country has adopted a common or civil law system. 239 Constitutional

provisions can also come into play. For example, Christopher Yoo, Professor at the University

of Pennsylvania Law School, noted that constitutional variance may have contributed to

differences in privacy protections in the United States and the European Union, as the latter’s

right to be forgotten rules may not be consistent with the First Amendment to the U.S.

Constitution. 240

Differences can also arise at a more granular level, such as whether agencies operate under a

prosecutorial, inquisitorial, or administrative model. 241 Several speakers focused on how

variations in evidentiary and procedural differences, often attributable to agency institutional

design and rules, may affect case outcomes. Yoo contended that certain legal systems, including

many administrative or inquisitorial systems, limit or preclude cross examination, the direct

questioning of witnesses, and the submission of counter evidence, potentially hampering the

target’s ability to present a full defense. 242

The fundamental differences that affect enforcement agencies are the institutional constraints in

which they operate. 243

–Angela Zhang,

University of Hong Kong and King’s College London

Another source of difference may be rules governing the agencies themselves. For example,

Angela Zhang, Associate Professor of Law at the University of Hong Kong and Senior Lecturer

at King’s College London, described how the absence of procedural rules governing disclosures

at a former Chinese competition agency resulted in few legal challenges to the agency’s

enforcement. 244 The agency would engage in a strategic public-shaming campaign against target

companies to pressure them to cooperate and quickly settle matters. 245 By contrast, in Europe,

recent changes to agency procedural rules have increased opportunities for legal challenges to

agency decisions. 246 Those modifications include greater defense rights as well as providing

private parties with the ability to obtain judicial review of an EC decision to close a case. 247 As

Yoo noted, though, the latter may have unintended consequences in terms of the sufficiency of

proof in borderline cases. 248

Speakers agreed that the role of the courts and the standard of legal review affect agency

outcomes and decision-making. 249 Several speakers posited that courts may be more deferential

when reviewing decisions by administrative agencies – with the burden on the target to show that

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the agency made an error of law or fact – than when adjudicating cases where the agency is the

plaintiff and must directly prove its case in the first instance. 250 Differences in judicial tradition,

including historical regard for state actors, may also contribute to the level of deference accorded

to an agency’s actions. 251 Zhang cited research showing that judges from countries with an

administrative law system influenced by the French model are more likely to decide competition

cases in line with the EC than are judges from other countries. 252

Consistent with Zhang’s observation, Yoo described how variations in legal education may

affect how lawyers and courts engage with different types of evidence, including economics. 253

In the United States, lawyers first pursue an undergraduate degree in any available subject before

attending law school, but in most of the world, legal education is an undergraduate course of

study. 254 As a result, Yoo believed that lawyers outside the United States may have less

exposure to subjects other than law, potentially rendering them less comfortable with

interdisciplinary thinking and more skeptical of non-legal concepts. 255 This may be exacerbated

because in many countries lawyers become judges shortly after qualifying as a lawyer. 256 He

attributed these differences to the reluctance of courts in some countries to grapple with

economic concepts that have become central to modern competition analysis. 257

Participants also recognized that regulatory style and culture, which are often a product of the

broader legal setting, can influence agency behavior and outcomes. For example, Francesca

Bignami, Professor of Law at the George Washington Law School, explained that consumer

protection policy in the United States has typically been made by enforcement-minded agencies

or even through decisions in private legal disputes. 258 By contrast, consumer protection policy in

many other economically advanced countries has historically resulted from a system that favored

agreement between the parties, with agencies operating more like an ombudsman. 259 Rather than

bring enforcement actions, those agencies focused on “compliance-oriented mediation” and

resolving complaints. 260 These different approaches sometimes yielded disparate outcomes and

may have hampered cooperation efforts. 261 Zhang noted that in China there is a culture favoring

consensus within the government to ensure sign-off at the top. 262 She indicated that this culture

often requires Chinese competition enforcers to consult with multiple agencies and stakeholders,

which can allow non-competition factors to enter into the competition analysis. 263

Despite these many sources of potential divergence, participants generally agreed that

differences have narrowed in recent years. One source of convergence has been the adoption by

various competition and consumer protection agencies of a more enforcement-oriented approach.

For example, Bignami observed that the trend toward agencies adopting similar strategic

deterrence-oriented approaches along with greater reliance on independent enforcement agencies

could facilitate greater cooperation and convergence. 264 She sees this trend developing in the

area of data protection, in particular, as data protection agencies adopt more enforcement-minded

approaches. 265 Philip Marsden, Professor of Law and Economics at the College of Europe,

cautioned, however, that disparate enforcement approaches, especially regarding new

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technologies, can be as relevant as differences in laws, and may lead to divergence. 266

Panelists also identified greater respect for due process and transparency as areas of increasing

convergence. 267 Bignami provided an example of the French data protection authority, the

CNIL, enhancing due process protections and opportunities for defendants so that it could

effectively exercise new enforcement powers. 268 Courts, including in Europe, are also playing a

significant role by adopting these reforms. 269 Despite recent improvement, Yoo emphasized the

need to continue to encourage agencies to enhance their procedural due process rules. 270

Panelists placed a premium on agency transparency. Transparency not only leads to greater

convergence but can also contribute to what Marsden described as “informed divergence” where

the reasons for disparate outcomes, including whether those differences were the product of

different legal systems and rules, would be understood. 271 Greater transparency would allow

other agencies to study and emulate more successful models. 272 As Bignami commented, “one

very productive way to engage with our foreign partners is to experiment . . . with different

methods and different policy aims and different ways of accomplishing the very same goals.” 273

Panelists also offered several suggestions for the FTC. Zhang encouraged the FTC, when

engaging with foreign agencies, to take more of a “bottom-up approach” in order to “really

understand the institutional actors and their incentives” outside of its counterpart agencies (e.g.,

the courts). 274 Yoo urged the FTC to continue its important work both bilaterally and

multilaterally to help agencies develop their technical capabilities and procedural practices

through guidance and best practices. Regarding procedural protections, he recommended that

the FTC target situations when a country is reforming its agency structure or evaluating its

procedures, and suggested framing procedural reforms as broader issues of sound administrative

law and good government rather than strictly competition and/or consumer protection

concerns. 275 Marsden opined that the FTC could play a significant role in addressing substantive

divergence. 276 To promote greater understanding and convergence, he urged the FTC to be

bolder, to be even more transparent, and to use its range of tools, from market studies to

enforcement, to help other agencies make educated decisions about how best to tackle policy and

enforcement challenges in a fundamentally sound way. 277

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REMARKS BY COMMISSIONER CHRISTINE

WILSON

FTC Commissioner Christine Wilson provided a perspective on the evolution of international

organizations and the benefits of international engagement. She noted that multilateral

competition organizations play an important role in promoting sound policy approaches, and are

important fora for the FTC to engage with counterpart agencies to discuss important issues.

Commissioner Wilson identified several jurisdictions that are considering “whether and how to

revise the antitrust laws, particularly as they apply to the digital economy.” 278 She pointed to

calls for “big changes from wide-ranging structural and behavioral remedies to changes in the

underlying goals of antitrust law.” 279 Referring to questions regarding whether to abandon the

focus on consumer welfare in favor of considering additional policies, abandoning reliance on

economic principles, and returning to mechanical rules to judge the legality of mergers,

Commissioner Wilson rejected each of these proposals. 280

Commissioner Wilson emphasized that it is important to discuss these issues with international

partners, and found that interactions with sister agencies, bilaterally and in multilateral

organizations, have the benefit of focusing each agency’s analysis and “identify[ing] areas for

collaboration, and, if appropriate, convergence.” 281 She noted the success of the International

Competition Network and her confidence in the “ability of the international antitrust community,

including the many bilateral relationships and multilateral institutions, to examine these

important questions in a constructive way.” 282 Commissioner Wilson concluded by praising the

FTC’s International Affairs Office’s international work on competition, consumer protection,

and data privacy issues, including through its bilateral relations, its work in multilateral

organizations, and its Technical Assistance and International Fellows programs. 283

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SUMMARY OF PANEL 6: Promoting Sound

Policies for the Next Decade

This panel focused on ways to develop coherent policies that protect consumers and promote

competition while preserving the benefits of global commerce. Following introductory remarks

by Commissioner Christine Wilson, panelists debated the advantages and disadvantages of soft

law (e.g., best practices, guiding principles) versus hard law (e.g., laws and treaties) approaches,

compared multinational and bilateral approaches, and discussed the role of technical assistance

in policy development.

Teresa Moreira, Head of the Competition and Consumer Policies Branch of the United Nations

Conference on Trade and Development (UNCTAD), provided an international organization

perspective on policy development. 284 She highlighted two UN documents, the United Nations

Set of Competition Principles and Rules on Competition and the United Nations Guidelines for

Consumer Protection. 285 Both instruments provide consensual, non-binding policy frameworks

for developing economies and economies in transition and “underline the importance of

cooperation, obviously at the international level but also at regional and bilateral level, and not

only in the framework of formal international or regional organizations but also through informal

networks across the world.” 286 Moreira emphasized that sound policies should “identify best

practices and promote and lead to the exchange of information and experiences, fostering mutual

learning . . . and promoting . . . convergence or organization.” 287

At its best, we believe soft law combines the expertise of stakeholders from around the world to

define agreed principles and best practices . . . . [I]n today’s world where markets are

increasing[ly] connected across borders and many countries face the same challenges, this is

particularly important. 288

–Justin Macmullan,

Consumers International

The discussion then focused on the merits of soft versus hard law approaches to policy

harmonization. Justin Macmullan, the Acting Co-Director General of Consumers International,

highlighted the importance of soft law both for influencing global ideas and for providing a

framework for national legislation and regulation. 289 Though some may fear soft law as leading

to the “lowest common denominator,” Macmullan maintained that it retains its flexibility to “aim

high” precisely because it’s not binding. 290 Moreira agreed that soft law can be “ambitious,”

noting that soft law tends to highlight the most advanced jurisdictions’ “success stories.” 291 She

said that guidelines at the UN and the Organization for Economic Cooperation and Development

(OECD), and discussions at the World Trade Organization, contributed to the increase in

competition laws from a dozen jurisdictions to over 130, including in developing countries. 292

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Macmullan said that for fast-changing issues emerging in the digital economy, soft law

developed by international organizations can be an interim way to provide guidance while

countries are developing more formal regulation. 293 Moreira added that soft law could also

combine with hard law initiatives through bilateral and regional partnerships. 294

Macmullan noted, however, that it can be difficult to monitor and measure the impact of soft

law. He also said that the “development of international soft law needs to stay ahead of the

curve . . . to remain relevant, helping authorities and other actors to tackle new and emerging

issues so that consumers do not have to deal with the risks themselves.” 295 Macmullan also

identified challenges in the “ability to translate high-level international principles for national

systems and real-world markets . . . particularly where resources are limited and frameworks and

institutions are either new or haven’t been established.” 296 Still, he said that, in the consumer

protection area, if “we were talking about hard law, then what we would achieve would be far

less than the . . . high standards that we were aiming for.” 297

Professor Daniel J. Solove from George Washington University Law School echoed these

themes in the context of privacy and data security policy. He noted the key role of the FTC,

which turned what was “a rather toothless self-regulatory” soft law approach based on

companies’ privacy promises into something that started to have “teeth” by challenging

companies that broke their promises to protect the public’s personal information. 298 Solove

observed that this was a hybrid approach in that companies still had leeway in deciding what

they promised but that the FTC hardened this approach by enforcing privacy promises. 299

Solove nonetheless cautioned that soft law approaches had their limits. Contrasting the global

leadership of the United States on privacy laws during the 1970’s and beyond with Congress’s

“largely quiet” stance today, Solove observed that the rest of the world has “taken charge of

privacy.” 300 He singled out the European Union’s General Data Protection Regulation (GDPR),

a comprehensive privacy law with significant extraterritorial reach and severe penalties, as the

“global standard” that is serving as a “model” for the rest of the world. 301 Solove observed that

global companies now look to the European Union as their regulator and build their privacy

programs to comply with the GDPR. 302 He pointed, nonetheless, to the FTC’s development of a

“considerable body of jurisprudence” on privacy issues and data security through consent

decrees and enforcement actions under Section 5 of the FTC Act, “which has the broadest

jurisdiction of any type of law that we have to regulate privacy and security.” 303 Solove stated

that “if the U.S. wants to take a leadership role . . . the FTC has to step up and has to play that

role.” 304

John Pecman, former Commissioner of the Canadian Competition Bureau and now Senior

Business Advisor at Fasken, highlighted the Bureau’s work with bilateral and multilateral soft

law approaches to further international convergence. He cited bilateral approaches including the

Bureau’s alignment of its merger review processes with those of the United States and the

development of voluntary best practices with bilateral partners. He then addressed the Bureau’s

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engagement in multilateral fora, such as International Consumer Protection and Enforcement

Network (ICPEN), International Competition Network (ICN), and OECD, noting the Bureau’s

ICN leadership to “promote a normative approach to economic analysis for determining

anticompetitive harm.” 305 Pecman said that agencies had made “significant progress . . . through

soft convergence” and raised some ideas for further improvements, such as creating a permanent

ICN secretariat to aid compliance with international best practice standards. 306 He added,

however, that “the dual drivers of globalization and the new digital economy in conjunction with

populism have increased tensions . . . among competition agenc[ies] and the risk of divergent

approaches to competition law.” 307 Asserting that “the time . . . is ripe for considering new

approaches,” 308 Pecman identified a range of options and advocated for a Mutual Assistance

Agreement that would permit the Canadian and U.S. antitrust agencies to share confidential

information in non-criminal matters. 309 He cited tools such as the multilateral cooperation

instruments used by International Organization of Securities Commissions (IOSCO) and the

possibility of joint investigative teams. 310 He also noted more aggressive approaches such as the

extraterritorial application of competition laws and use of international trade agreements. 311

Abbott “Tad” Lipsky, Adjunct Professor of Law at George Mason University’s Antonin Scalia

Law School, stated that a broad variety of approaches would be needed to achieve the best

economic outcomes for consumers globally. He noted that multilateral organizations like the

OECD and the ICN are very helpful when the government or competition agencies have

common interests, for example, in establishing professional connections, reducing the potential

for conflict in decisions in cases, and supporting new competition agencies in adopting and

enforcing effective competition law regimes. 312 In contrast, he asserted that multilateral

organizations and binding multilateral agreements were not well suited to reducing the

complexities of antitrust compliance for business, expunging protectionist laws, or assuring due

process when the change needed for convergence to good practice is contrary to the interests of

some governments and competition agencies. 313 Thus, he stated that “the world is not yet ready

and possibly will never be ready for a binding global approach to competition law

convergence.” 314 Instead, he advocated for developing solutions to some of the most complex

questions of international antitrust policy by beginning with bilateral approaches, including

through binding agreements. He suggested agreeing on “gold standard[s]” among like-minded

agencies, and then “build[ing] out from there” as a way to encourage policy and process

convergence. 315

With regard to the relative advantages of multilateral and bilateral approaches, Moreira noted the

need for multinational frameworks to address global challenges but recognized that “like minded

countries” can be more ambitious as they share similar standards and systems and have close

trade and economic relationships. 316 Pablo Trevisán, a Commissioner of Argentina’s National

Commission for the Defense of Competition, spoke to the advantages of both approaches. 317 He

explained that Argentina “is rebuilding the [competition] house while living in it.” 318 He said

that multilateral organizations like the OECD, ICN, and UNCTAD have helped his agency learn

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and that bilateral cooperation has also been very important. 319 Trevisán identified a mix of

components as necessary for effective competition law and policy – an independent authority,

due process, and interaction between domestic competition, consumer protection, privacy, and

sectoral authorities, as well as international authorities and multilateral organizations. 320

[Technical assistance] is extremely important because we, through these activities, are really

able to promote sound policies . . . . [W]e advise on adopting and revising laws and on the

strengthening of capacities and setting up of institutions to actually implement them . . . . The

FTC has played a major role in both polic[y] fields in our technical assistance projects. 321

–Teresa Moreira,

UNCTAD

Finally, panelists turned to the benefits of technical assistance in developing and harmonizing

policy approaches. Moreira noted that technical cooperation helps the United Nations promote

sound policies and can promote convergence and build trust. 322 Trevisán noted that the U.S.

agencies were the first to come to Argentina when it was rebuilding its competition agency, and

had helped it shape its work, including through training and workshops. 323 Pecman observed

that such programs require funding but that less formal arrangements through staff exchanges

and visits can also deepen ties and help shape policy and procedures in the other jurisdiction. 324

He recommended more coordination to ensure that technical assistance providers avoid

duplicating each other’s efforts. 325 Solove advocated for the United States to take more of a

leading role in promoting its approaches to privacy, which in some instances are more workable

than the GDPR. 326 He urged the United States “to plausibly step forward and present something

on our behalf” about how the U.S. approach addresses many of the issues that are key to privacy

and data security protection worldwide. 327

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SUMMARY OF PANEL 7: Effective International

Engagement: Foreign Agency Perspectives

This panel showcased the views of senior officials from foreign competition, consumer

protection, and data protection authorities on international engagement. Speakers shared their

experience regarding what has proven successful and areas for improvement, focusing on the

interrelated elements of cooperation on individual cases, broader engagement, and technical

assistance and capacity-building efforts. 328

Panelists agreed that both bilateral relationships and multilateral interactions among authorities

are important to effective international engagement and cooperation. 329 They indicated that

bilateral relationships can be facilitated in different ways – for example, agreements and MOUs

are helpful to fostering bilateral relations and case cooperation, while technical assistance is

valuable for developing relations with less experienced agencies and promoting convergence

toward sound practice and policy. 330 Paula Farani de Azevedo Silveira, a Commissioner of

Brazil’s Administrative Council for Economic Defense (CADE), noted that CADE benefited

from technical assistance from experienced agencies, which helped CADE mature to the point

that it is now able to provide assistance to less experienced agencies. 331 Stephen Wong,

Commissioner of the Hong Kong Office of the Privacy Commissioner for Personal Data, also

stated that informal, ad hoc bilateral arrangements and approaches can be useful. 332 The

panelists agreed on the importance of multilateral engagement to facilitating cooperation, citing

organizations such as the Organization for Economic Cooperation and Development (OECD),

International Competition Network (ICN), and Global Privacy Enforcement Network (GPEN), as

well as regional cooperation bodies such as Association of Southeast Asian Nations (ASEAN),

the European Union, and the African Dialogue. 333

Panelists focused on the role of regional relationships in facilitating ties among agencies,

including building relations necessary for case cooperation, general experience-sharing, and

capacity building. 334 Han Li Toh, CEO and Commissioner of the Competition and Consumer

Commission of Singapore, said that assistance from the ASEAN regional free trade agreement’s

Competition Law Implementation Program, which is supported by Australia and New Zealand,

has been extremely useful to his agency. 335 Some panelists noted benefits from ties between

agencies in countries at a similar level of economic development. 336 For example, Azevedo cited

the extensive interaction that has developed among competition enforcers in the BRICS countries

in recent years. 337

Turning to how to effectuate successful international engagement, panelists praised the value of

interagency staff contact in the context of both specific case cooperation and general experience

sharing. 338 Regarding case cooperation, Rainer Wessely, of the Delegation of the European

Union to the United States, noted that an agency’s staff must be able to identify cases with

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international ramifications and then understand the cooperation process well enough to ensure

that it is successfully carried out. 339 This requires adequate awareness, training, and support

within an agency. 340 Panelists stressed the value of interactions among staff that are addressing

similar industries or types of cases to discuss their experience. Examples of such engagement

within the European Competition Network and the BRICS association were identified as

fostering dialogue within these groups, which fed into broader multilateral engagement. 341

Panelists also highlighted how direct staff exchanges and placements can promote such

interaction, enhance cooperation and convergence, and build agency capacity. 342

[W]hat really brings more knowledge to CADE is having the people that are working on the

cases meet with the people that are working on cases in other jurisdictions. 343

–Paula Farani de Azevedo Silveira,

CADE

Panelists also consistently noted that their agency’s international engagement directly benefits

domestic consumers and domestic priorities. 344 Chris Warner, Legal Director for the UK

Competition and Markets Authority (CMA), explained that competition and consumer protection

agencies “wouldn’t be doing [their] job properly . . . if we’re not thinking about international

dimensions.” 345 Additionally, he noted that an agency’s domestic priorities often drive its

international engagement because the areas of greatest domestic focus and experience are the

very issues where agencies have the most to share with their sister agencies. 346 Panelists

recognized that case cooperation is enhanced by greater interactions with sister agencies,

including discussing common issues, sharing best practices, and learning from others’

experiences and thinking. This contributes to increased detection and enforcement – especially

important in today’s highly integrated world and helps in other ways. For example, Azevedo

explained that interaction with foreign counterparts had helped her agency make sound

enforcement decisions that “minimize[d] . . . growing pains” that could have proven “very costly

to the [Brazilian] economy.” 347 Both Toh and Tunde Irukera, Director General of Nigeria’s new

Federal Competition and Consumer Protection Commission, stressed that the experience of

foreign agencies with dual competition and consumer protection authority has been crucial to

their agencies’ successful integration of additional legal and subject-matter authority. 348

Azevedo also provided a helpful example of using OECD peer review and international

benchmarking to support domestic legislative changes. 349

While identifying the many benefits of international cooperation, panelists noted several

challenges. These included obstacles to information sharing among agencies, often because of

confidentiality, data protection, or data localization rules, as a challenge or impediment to

effective enforcement cooperation. 350 They identified the potential for “second-generation”

cooperation agreements to help overcome these issues and strengthen cooperation by allowing

more detailed information and evidence sharing. 351 Wessely indicated that the European Union

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was building on the success of its second-generation agreement with Switzerland by negotiating

similar agreements with Japan and Canada. 352 Some agencies, including Hong Kong’s data

protection agency, sometimes rely on ad hoc arrangements on specific cases to permit greater

cooperation with counterpart agencies. 353

Panelists also observed that divergence in domestic laws, analytical approaches, and legal

systems, as well as priorities, can make cooperation more difficult. 354 While there may be few

short-term fixes for these issues, several panelists believed that differences could be minimized

by focusing on the common harm resulting from the problematic behavior rather than, for

example, differences in the definition of legal infringements. 355 Similarly, Warner noted that

differences can sometimes be more readily overcome when addressed directly in the context of

case cooperation rather than in the abstract. 356 Specifically, he cited European and international

consumer protection agencies “sweeps,” where agencies work through the stages of a

complicated case together, identifying common ground, potential differences, and solutions, as

“fertile ground for working together and sharing knowledge and developing . . . new

practices.” 357

[F]or the CMA, being a joint competition and consumer protection authority . . . when presented

with a new difficult issue we naturally think about it from both sides of the coin. And I think it’s

important that we try to replicate that on . . . [an] international dimension. 358

–Chris Warner,

UK CMA

Looking to the future, some panelists believed that more emphasis should be placed on

examining issues from both the consumer protection and competition perspectives. They noted

that this was especially relevant for digital economy issues, which often implicate both areas. 359

For example, Warner identified how the CMA recently presented a policy paper on personalized

pricing to both the OECD’s consumer protection and competition committees and encouraged

them to discuss it together. 360 When asked if there are improvements that the FTC might make

to its international tools and program, the panelists commended the FTC for its leadership in

international organizations and its engagement and cooperation with other agencies. 361 As

Wessely noted, the FTC is seen as “the role model for international cooperation.” 362 In

particular, panelists cited the FTC’s engagement and leadership in the ICN as well as the breadth

of its technical assistance and capacity building programs. 363

Panelists offered several suggestions for future steps. Azevedo noted that Brazil had entered into

a Mutual Legal Assistance Treaty (MLAT) with the United States covering detailed information

sharing in criminal matters, but would benefit from a similar arrangement in the civil context. 364

Toh appreciated the FTC’s increased engagement in the ASEAN region, and looked forward to

additional regional opportunities for partnership. 365 Irukera cautioned that agencies such as the

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FTC should be careful not to substitute regional for bilateral engagement, stressing that both are

important. 366 Warner suggested that agencies use their tools such as the CMA’s and FTC’s

market studies powers, which can promote a broad understanding of markets and provide

valuable insights that can contribute to the international discussion. 367 Finally, all panelists

identified the importance of continued international engagement.

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REMARKS BY JAMES RILL

“We don’t know where we can go unless we know where we’ve been.” 368 James Rill, Senior

Counsel at Baker Botts LLP and former Assistant Attorney General in charge of the U.S.

Department of Justice Antitrust Division, set the stage for a lively panel discussion on the FTC’s

role in a changing world by describing the many policy and substantive contributions of the FTC

to the field of competition and consumer protection. He then identified challenges ahead of the

FTC and other federal agencies in cooperation and enforcement, offering suggestions for both

international and domestic cooperation.

Rill lauded the work of the Commission in the International Competition Network (ICN) and the

Organization for Economic Cooperation and Development (OECD) in developing a set of

antitrust enforcement guidelines on policy, procedure, transparency, and engagement that “is a

real contribution to international cooperation.” 369 He noted that the FTC and the DOJ played an

active role negotiating competition chapters in proposed U.S. trade agreements such as the U.S.Mexico-Canada Agreement and the Korea-U.S. Free Trade Agreement. 370

Addressing the FTC’s Technical Assistance Program, Rill recalled its origins in the 1990s when

the FTC and the DOJ conducted joint missions in newly emerging market systems in Central and

Eastern Europe. 371 Rill strongly recommended the continuation of technical assistance programs

and urged the FTC to consider more joint work with the DOJ that draws on the skills and

expertise of both agencies. 372

Looking to the future, Rill called on the antitrust agencies to shift some of the current focus on

procedure and “evangelize on substance.” 373 He urged the FTC to continue to promote sound

consumer welfare-based antitrust principles through international organizations like the ICN and

the OECD, its technical assistance program, and cooperative work with the DOJ and other U.S.

government agencies. 374

[E]qually important [as international cooperation] in the international field is the issue of

cooperation across the panoply of . . . Federal Government [agencies] that have a particular

expertise and have much to offer in those areas that can affect and influence and promote sound

antitrust enforcement. 375

–James Rill,

Baker Botts LLP

In the ICN and the OECD, Rill urged the FTC to put more “gravitas” behind guidance

documents by converting them into best practice documents. 376 He suggested that the antitrust

community seriously consider measuring whether agencies are following existing guidance and

(future) best practices. 377 Rill envisages a role for the FTC in working with other agencies to

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develop a system for measuring accountability and adherence to guidance and best practices

documents, such as the ICN’s due process recommendations, through a system that relies on the

power of reputational effect rather than on sanctions. 378

Rill suggested that another way to promote the consumer welfare model and address

anticompetitive practices by state-owned enterprises (SOEs) and resurgent support for national

champions would be for the FTC and the DOJ to work to form an ICN working group that

focuses on SOEs and state-supported enterprises. 379

Turning to international cooperation issues, Rill identified the 2017 FTC-DOJ Antitrust

Guidelines for International Enforcement and Cooperation as providing a basis for the agencies

to engage in general discussions of a matter with a foreign authority that has an open

investigation, even if the agencies do not. 380

Rill described domestic cooperation as “a challenge and something that’s vitally needed in the

21st Century,” for example where the FTC and the DOJ work with non-antitrust agencies of the

U.S. government. 381 Acknowledging the possible reservations based on his experience working

with the Office of the U.S. Trade Representative, he suggested that the U.S. antitrust agencies

can learn from other U.S. agencies’ industry expertise and insight into matters of, for example,

national security. 382 While Rill did not support creating a cabinet-level committee for antitrust

policy proposed in a Chamber of Commerce report, he stated that, “[w]hatever decisions are

being made on antitrust, [the agencies] should have a seat at the table to explore . . . the antitrust

implications of industry decisions being made at another level,” citing the expertise that the

Commission brings to these discussions. 383

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SUMMARY OF PANEL 8: The FTC’s Role in a

Changing World

The discussions held during this concluding panel centered on core aspects of the FTC’s role in a

changing world. Panelists focused in on four central questions:

•

What makes an effective competition, consumer protection, and/or data privacy agency?

•

How can the FTC be most effective in its bilateral relationships and cooperation?

•

What should be the FTC’s role in promoting sound policies and convergence?

•

What is the role of the FTC as a leader in thought and action?

Panelists identified independence, transparency, and accountability as the key characteristics of

effective agencies. They also stressed the importance of technical skills and efficient agency

design. 384

[T]o be . . . effective, regulators need to step up and be strategic, prioritize their engagement,

thought leadership, [and] actions versus potential enforcement, and be very transparent in how

they conduct their regulatory policy. 385

–Bojana Bellamy,

Centre for Information Policy Leadership

Rod Sims, Chair of the Australian Competition and Consumer Commission (ACCC),

characterized an effective agency as one that is both a strong enforcer and a strong advocate. He

urged agencies to publicize their enforcement, market studies, and advocacy on behalf of

consumers. 386 Bojana Bellamy, President of Hunton Andrews Kurth LLP’s Centre for

Information Policy Leadership, suggested that in the “fourth Industrial Revolution,” effective

privacy agencies must be “technically strong” and consider “innovative regulatory policy.” 387

She explained that because there “hasn’t been anyone else who has ever regulated data . . . ,”

agencies may need to “reinvent” themselves. 388 She opined that regulators should favor

“constructive engagement over enforcement,” reserving enforcement actions for companies that

“deliberately, repeatedly keep breaking the rules . . . .” 389 Bellamy also suggested exploring

mechanisms like “regulatory sandbox[es],” which some foreign agencies, such as the UK

Information Commissioner’s Office, are using to design products and services that comply with

regulation while keeping up with the fast pace of innovation. 390

Eduardo Pérez Motta, Senior Partner of SAI Law and Economics, former President of the

Mexican Federal Competition Commission, and former Chair of the International Competition

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The FTC’s Role in a Changing World: Staff Recommendations and Report

Network, echoed Bellamy’s call for efficiency and transparency. He outlined five elements of an

effective, well-designed competition agency starting with the need for independence from

interference from other government actors. Pérez Motta also pointed to neutrality – i.e., the

perception that the agency is unbiased, technical strength, including conformance with

international best practices, efficiency, and transparency. 391

Panelists also stressed that effective agencies would increasingly need to leverage synergies in

the digital economy. Because “data now cuts through almost every area,” panelists stressed that

competition and consumer protection authorities should reach out not only to each other, but also

to departments and agencies within their own governments, in order to learn from one another. 392

Andrew Wyckoff, Director of the Organization for Economic Cooperation and Development

(OECD) Directorate for Science, Technology, and Innovation, referenced the OECD’s work on

the “digital transformation” of the economy and recommended that competition and consumer

protection authorities begin working with other government departments that “have a lot of data

and don’t necessarily understand . . . the marketplace as an FTC would.” 393

The discussion turned to ideas for enhanced cooperation. These included multilateral

enforcement arrangements like the IOSCO MMOU in the securities area and bilateral

arrangements like the U.S.-Australia mutual assistance agreement, which provides for

confidential information sharing and investigative assistance using domestic tools. 394 Another

idea offered by Wyckoff was better implementation of existing principles, as recommended by

the OECD’s recent review of the 2003 Council Recommendation on cross-border cooperation to

combat consumer fraud. 395 Sims highlighted the success of cooperation under the U.S.-Australia

MAA and suggested that such agreements could be a powerful tool to increase agency

effectiveness. 396

Panelists turned to the private sector’s role in agency effectiveness. Terry Calvani, former

Commissioner and Acting Chairman of the FTC and former member of the Irish Competition

Authority, acknowledged that the “agencies need to always be in the driver’s seat” but argued

that the private sector could serve as a valuable sounding board for proposed changes in law,

regulation, and policy. 397 Bellamy amplified this point, indicating that the private sector is

contributing to policy frameworks by “applying reasonably coherent privacy requirements and

rules wherever they operate.” 398 She pointed to the role of the private sector in the Asia-Pacific

Economic Cooperation (APEC) Cross-Border Privacy Rules System, which provides a

mechanism for cross-border data transfers with strong privacy protections. Bellamy explained

that APEC’s private sector-based certifiable “accountability model” acts “as a minimum-based

standard . . . that enable[s] companies to share data accountably and responsibly and, therefore,

promote[s] consumer trust and confidence in the digital economy.” 399

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We are now living in a very difficult reality internationally that puts at risk the consideration of

market policies and . . . the promotion of market efficient policies. 400

–Eduardo Pérez Motta,

SAI Law and Economics

Panelists also suggested that the FTC should promote convergence through a combination of

advocacy in international organizations and capacity building through technical assistance. 401 In

the competition area, some panelists urged the FTC to continue to promote consumer welfarebased antitrust principles, cautioning that, “[a]s we promote the consumer welfare standard,

don’t make it so technical no one wants to touch it.” 402 They urged continued advocacy against

arguments favoring national champions. 403 Calvani identified due process in competition

matters as an area where the FTC should advocate convergence, asserting that it is an issue that,

“all of us ought to be concerned with” and that “there’s a great deal of very profitable missionary

activity that ought to and can take place there.” 404

The panelists also addressed the challenges of convergence and interoperability pertaining to

privacy and data security. Bellamy noted that mechanisms like the EU-U.S. Privacy Shield and

mutual assistance agreements between individual data protection agencies in the EU and the FTC

set the stage for further joint policy initiatives on issues like blockchain, machine learning, and

the Internet of Things. 405 Others agreed that the FTC should use its consumer, competition, and

privacy experience to play a leading role in developing bilateral and multilateral mechanisms for

privacy and data security, and work with businesses to implement their requirements.

[A] common thread of this panel [is that] a new factor production for today is data. This raises

some interesting questions for both competition authorities [and] data protection and privacy . .

. that I think FTC is perfectly poised to begin to look at. 406

–Andrew Wyckoff,

OECD

Panelists commented that while many antitrust regimes around the world are now looking to the

EU competition framework rather than the U.S. approach to competition enforcement, they

largely attributed this to differences in legal systems – i.e., common versus civil law and

adversarial versus regulatory systems. 407 They noted that despite those differences, the

FTC/DOJ merger guidelines and other instruments continue to serve as a model for other

jurisdictions, which in some cases have wholly adopted them. 408 Panelists further lauded the

FTC’s efforts to share with foreign agencies its understanding of the operation of markets and of

the mechanics of competition enforcement. 409

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I think it’s an extremely good idea for the FTC to exercise leadership in the data field, given it is

the competition, the consumer, and the privacy regulator. That is a fantastic combination. 410

–Rod Sims,

ACCC

Looking to the future, panelists provided concrete proposals for FTC leadership and engagement

in international organizations. Pérez Motta suggested that the ICN consider adding a “permanent

secretariat” that would act as an advocate for competition, and housing a mechanism for

cooperation. 411 Wyckoff suggested that the FTC, which has leadership positions in both the

OECD consumer policy and data privacy bodies, help build an evidence base with, for example,

comparative indicators of data breach laws. 412 He suggested that the FTC might take the lead, as

it did with the 2010 Consumer Policy Toolkit, and launch a project on behavioral and

informational economics. 413 He suggested additional work on consumer attitudes toward trust

and more experimental work on personalized pricing where there is “a lot of international

interest and where the FTC could play a leading role.” 414 Sims noted that in Australia, the

ACCC recently sued several large companies for consumer law breaches and obtained large

fines. He explained that the “the harm you can do through misleading consumers is visibly as

bad as it can be from cartels” and urged agencies to elevate the profile of consumer protection

internationally. 415 He recommended that International Consumer Protection Enforcement

Network (ICPEN) engage in more work to promote consumer protection through capacity

building, coordinated action among the members, and common approaches and practices. 416

The discussion concluded with a call to give greater weight to the importance of consumer policy

in an increasingly digital economy, where end users are empowered in unprecedented ways, and

where we rely on consumers to make markets in a way that we did not 50 years ago. 417 In

addressing specific ways in which the FTC might shape its role, panelists suggested that the

FTC, as an agency that handles competition, consumer protection, and privacy, is wellpositioned to play a leading role in the 21st century. 418

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ENDNOTES

See FTC Hearing #11: The FTC’s Role in a Changing World, FED. TRADE COMM’N, https://www.ftc.gov/newsevents/events-calendar/ftc-hearing-11-competition-consumer-protection-21st-century. The transcripts are

available at

https://www.ftc.gov/system/files/documents/public_events/1454018/ftc_hearings_session_11_transcript_day_1_

3-25-19.pdf, [Tr.1] and

https://www.ftc.gov/system/files/documents/public_events/1454018/ftc_hearings_session_11_transcript_day_2_

3-26-19.pdf [Tr. 2].

See FTC Hearing #11: The FTC’s Role in a Changing World, FED. TRADE COMM’N, supra note 1; Hearings on

Competition and Consumer Protection in the 21st Century, Hearing #11: The FTC’s Role in a Changing World,

REGULATIONS.GOV,

https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&dct=PS&D=FTC2019-0002.

https://www.whitehouse.gov/briefings-statements/bill-announcement-102020.

See Undertaking Spam, Spyware, and Fraud Enforcement with Enforcers Beyond Borders Act of 2006, Pub. L. No.

109-455, 120 Stat. 3372 (2006), available at https://uscode.house.gov/statutes/pl/109/455.pdf [hereinafter “SAFE

WEB Act”].

Tr. 1 at 13. See Prepared Statement of the Federal Trade Commission: Oversight of the Federal Trade Commission

Before the Committee on Energy and Commerce Subcommittee on Consumer Protection and Commerce United

States House of Representatives, 24-27 (2019), available at

https://www.ftc.gov/system/files/documents/public_statements/1519212/p180101_house_ec_oversight_testimo

ny_may_8_2019.pdf.

https://www.whitehouse.gov/briefings-statements/bill-announcement-102020.

Tr. 1 at 28, 52, 115, 130.

Tr. 1 at 28.

Tr. 1 at 52-53, 130, 152.

Tr. 1 at 51, 69.

Tr. 1 at 115.

See Securities Acts Amendments of 1990, Pub. L. No. 101-550, 104 Stat. 2713 (1990), available at

https://www.govinfo.gov/content/pkg/STATUTE-104/pdf/STATUTE-104-Pg2713.pdf; Futures Trading Practices Act

of 1992, Pub. L. No. 102-546, 106 Stat. 2590 (1992), available at https://www.govinfo.gov/content/pkg/STATUTE106/pdf/STATUTE-106-Pg3590.pdf; Consumer Product Safety Improvement Act of 2008, Pub. L. No. 110-314, 122

Stat. 3016 (2008) (codified at 15 U.S.C. § 2078), available at https://www.govinfo.gov/content/pkg/PLAW110publ314/pdf/PLAW-110publ314.pdf.

Tr. 1 at 144-45.

Tr. 2 at 106, 155, 182-84, 195, 230-31.

See International Competition and Consumer Protection Cooperation Agreements, FED. TRADE COMM’N, available

at https://www.ftc.gov/policy/international/international-cooperation-agreements.

See 15 U.S.C. § 6201 (1994), available at

https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter88&edition=prelim.

See Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of

Information [hereinafter “MMoU”], INT’L ORG. OF SEC. COMM’NS,

https://www.iosco.org/library/pubdocs/pdf/IOSCOPD386.pdf.

Tr. 1 at 85, 87-89.

Tr. 1 at 100, 116-17.

Tr. 1 at 113.

Tr. 1 at 86-87, 118.

Commenters also recognized the important role of FTC leadership. See Letter from Sean Heather to Federal

Trade Commission, December 19, 2018 (E.g., “The Need For Stronger Antitrust Agency Leadership in Promoting

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The FTC’s Role in a Changing World: Staff Recommendations and Report

Due Process and Economically-Sound Effects-Based Antitrust Analysis”), REGULATIONS.GOV,

https://www.regulations.gov/document?D=FTC-2019-0002-0010; See Comment Submitted by BBB National

Programs, Inc., REGULATIONS.GOV, https://www.regulations.gov/document?D=FTC-2019-0002-0008. (“U.S.

leadership in the area of self-regulation has often paved the way toward the development of standards recognized

by international bodies. Although industry cooperation and self-regulation are usually initiated without

government involvement, they are made more potent and durable by the support and encouragement of expert

government actors like the FTC.”; Id. at 1; “In short, the FTC has often used its seat at the table in discussions with

international bodies to encourage others to embrace a full complement of tools, including self-regulatory

initiatives, when protecting consumers and competition.” Id. at 5).

Tr. 2 at 96.

Tr. 1 at 19-20, 24, 29-31; Tr. 2 at 197-98.

See UNITED STATES DEP’T OF JUSTICE & FED. TRADE COMM’N, ANTITRUST GUIDELINES FOR INTERNATIONAL ENFORCEMENT AND

COOPERATION (Jan. 13, 2017) [hereinafter “Antitrust Guidelines for International Enforcement and Cooperation”],

https://www.ftc.gov/system/files/documents/public_statements/1049863/international_guidelines_2017.pdf.

Tr. 1 at 289-93.

Tr. 2 at 239.

Tr. 2 at 103-4, 143; Tr. 1 at 159-60.

Tr. 1 at 40.

See U.S. Federal Trade Commission’s and Department of Justice’s Experience with Technical Assistance for the

Effective Application of Competition Laws (Feb. 6, 2008),

https://www.ftc.gov/sites/default/files/attachments/international-assistance-program/ftcdojtechnicalassist.pdf;

International Fellows Program, FED. TRADE COMM’N, https://www.ftc.gov/policy/international/international-fellowsprogram.

See id.

Tr. 2 at 96-97, 138-40.

Tr. 2 at 215.

Tr. 1 at 12. See SAFE WEB Act, supra note 3.

Tr. 1 at 13. See Operators of Sweepstakes Scam Will Forfeit $30 Million to Settle FTC Charges, FED. TRADE COMM’N

(Mar. 7, 2019), https://www.ftc.gov/news-events/press-releases/2019/03/operators-sweepstakes-scam-willforfeit-30-million-settle-ftc.

Tr. 1 at 13.

Id. See Memorandum of Understanding Between the Federal Trade Commission of the United States of America

and the Competition and Markets Authority of the United Kingdom, available at

https://www.ftc.gov/system/files/documents/cooperation_agreements/mou_us_federal_trade_commission__uk_competition_and_markets_authority_-_march_2019.pdf.

Tr. 1 at 14.

Tr. 1 at 15-16. See INT’L COMPETITION NETWORK, https://www.internationalcompetitionnetwork.org; ICPEN,

https://www.icpen.org/; International Fellows Program, supra note 28.

Tr. 1 at 15.

Tr. 1 at 16-17.

Tr. 1 at 19.

Tr. 1 at 19-20, 24.

Tr. 1 at 25.

Tr. 1 at 19-20, 24, 29-31. See INT’L COMPETITION NETWORK, supra note 37; ICPEN, supra note 37.

Tr. 1 at 21-22.

Tr. 1 at 22.

Tr. 1 at 20.

Tr. 1 at 22. See Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the

protection of natural persons with regard to the processing of personal data and on the free movement of such

data, and repealing Directive 95/46/EC [hereinafter “General Data Protection Regulation”], 2016 O.J. (L119),

available at https://eur-lex.europa.eu/eli/reg/2016/679/oj.

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The FTC’s Role in a Changing World: Staff Recommendations and Report

Tr. 1 at 22-23.

Tr. 1 at 23.

Tr. 1 at 26. See Office of International Affairs, FED. TRADE COMM’N, https://www.ftc.gov/about-ftc/bureausoffices/office-international-affairs.

Tr. 1 at 27.

Tr. 1 at 28. See SAFE WEB Act, supra note 3.

Tr. 1 at 28. Section §§ 46(j) and 57b-2(b)(6) of the SAFE WEB Act, which amended the FTC Act and is now

incorporated into its text. See 15 U.S.C. §§ 46(j) and 57b-2(b)(6). The SAFE WEB Act was originally signed into law

on December 22, 2006. In 2012, Congress reauthorized the SAFE WEB Act until 2020. Pub. L. No. 112-203, 126 Stat.

1484, codified at 15 U.S.C. §§ 41 et seq.

Tr. 1 at 28. See International Fellows Program, supra note 28.

Tr. 1 at 30-31. See International Technical Assistance Program, FED. TRADE COMM’N,

https://www.ftc.gov/policy/international/international-technical-assistance-program.

Tr. 1 at 31. See OECD, http://www.oecd.org; UNITED NATIONS CONF. ON TRADE AND DEV., https://unctad.org.

Tr. 1 at 30.

Tr. 1 at 34.

Tr. 1 at 33, 36.

Tr. 1 at 34.

Tr. 1 at 35-36

Tr. 1 at 34.

Id.

Tr. 1 at 38.

Id.

Tr. 1 at 39. Kovacic cited France and Germany’s joint study on data protection as an example. See AUTORITÉ DE LA

CONCURRENCE & BUNDESKARTELLAMT, COMPETITION LAW AND DATA (May 10, 2016),

http://www.autoritedelaconcurrence.fr/doc/reportcompetitionlawanddatafinal.pdf.

Tr. 1 at 40.

Id. The FTC’s current authorizing statute contains several exemptions including for common carriers, banks,

charities, and non-profits. See 15 U.S.C. §45(a)(2).

Tr. 1 at 41-42. Kovacic also mentioned two improvements aimed at the FTC’s inner workings: (i) permitting the

hiring of foreign citizens; and (ii) amending the Sunshine Act to permit a safe space for FTC commissioners to

confer in private, like their foreign counterparts. Tr. 1 at 40-41.

Tr. 1 at 45.

Tr. 1 at 45-48.

Tr. 1 at 56-102.

Tr. 1 at 63-64. The ICN provides competition authorities with a specialized, informal venue for maintaining

regular contacts and addressing practical competition concerns. See International Competition Network, supra

note 37.

Tr. 1 at 67-74. ICPEN consists of more than 61 consumer protection law enforcement authorities from across

the globe. It provides a forum for developing and maintaining regular contact between consumer protection

agencies and focusing on consumer protection concerns. See ICPEN, https://www.icpen.org/.

Tr. 1 at 44.

Tr. 1 at 71. See INT’L COMPETITION NETWORK, INTERNATIONAL COMPETITION NETWORK’S

FRAMEWORK FOR MERGER REVIEW COOPERATION (Mar. 1, 2012), https://www.internationalcompetitionnetwork.org/wpcontent/uploads/2018/05/MWG_FrameworkforMergerReviewCooperation.pdf.

Tr. 1 at 53.

Tr. 1 at 72.

Tr. 1 at 48-49. See Agreement Between the Government of the United States of America and the Government of

Canada Regarding the Application of Their Competition and Deceptive Marketing Practices Laws, available at

https://www.ftc.gov/system/files/agree_canada.pdf.

See MMoU, supra note 15; Tr. 1 at 76.

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The FTC’s Role in a Changing World: Staff Recommendations and Report

Id.

Tr. 1 at 76. International Organization of Securities Commissions (IOSCO) also has an enhanced MOU with 10

signatories that requires signatories to have additional powers. Tr. 1 at 78-79.

Tr. 1 at 79.

Tr. 1 at 51-52.

Tr. 1 at 52. See Rogers Agreement with Competition Bureau Nets Record Refunds for Wireless Consumers,

COMPETITION BUREAU CANADA (Mar. 16, 2015), https://www.competitionbureau.gc.ca/eic/site/cbbc.nsf/eng/03889.html; https://uscode.house.gov/statutes/pl/109/455.pdf; SAFE WEB Act, supra note 3.

See Canada’s Anti-Spam Legislation (CASL or the Act, 2010 S.C., ch. 23 (Can.)), available at https://lawslois.justice.gc.ca/eng/acts/E-1.6/index.html; Art. 29, Competition Act (R.S.C., 1985, c. C-34), available at

https://laws-lois.justice.gc.ca/eng/acts/c-34/page-1.html.

See STATEMENT OF INTENT ON CROSS BORDER COLLABORATION, (Sept. 12, 2013),

https://www.ftc.gov/system/files/attachments/international-competition-consumer-protection-cooperationagreements/african_dialogue_principles_on_cooperation_in_consumer_protection_enforcement__zambia_september.pdf. The Principles provide, for example, that agencies should have the “ability to obtain

evidence to investigate and take action in a timely manner against consumer protection law violations” (B.3)

and “have the authority and discretion to cooperate on appropriate investigations and cases, both those

involving domestic practices targeting foreign consumers and those involving foreign practices targeting domestic

consumers . . . .” (B.1).

Tr. 1 at 85-89.

Tr. 1 at 85, 87-89.

Tr. 1 at 100.

Tr. 1 at 86-87. See General Data Protection Regulation, supra note 47.

Id. See ADMINISTRATIVE ARRANGEMENT FOR THE TRANSFER OF PERSONAL DATA, available at

https://www.sec.gov/files/Administrative_Arrangement.pdf; Tr. 1 at 87.

Tr. 1 at 88.

Tr. 1 at 75-80, 90-93.

Tr. 1 at 82-84. The FTC does not conduct joint investigations. See, e.g., Antitrust Guidelines for International

Enforcement and Cooperation, supra note 23, at 38 n. 139.

See e.g., Tr. 1 at 46-54, 58-60, 61-65, 69-73, 75-79, 100.

See EUROPEAN UNION, https://europa.eu/european-union/index_en; ASIA PACIFIC ECONOMIC COOPERATION,

https://www.apec.org/.

100

Tr. 1 at 105, 107-08. See United Kingdom’s Information Commissioner’s Office (ICO) actions against Facebook,

AggregateIQ, and Cambridge Analytica. ICO issues maximum £500,000 fine to Facebook for failing to protect users’

personal information (Oct. 28, 2018), INFORMATION COMMISSIONER’S OFFICE, https://ico.org.uk/facebook-fine20181025; ENFORCEMENT NOTICE (Oct. 24, 2018), INFORMATION COMMISSIONER’S OFFICE, https://ico.org.uk/media/actionweve-taken/enforcement-notices/2260123/aggregate-iq-en-20181024.pdf; SCL Elections prosecuted for failing to

comply with enforcement notice, INFORMATION COMMISSIONER’S OFFICE, https://ico.org.uk/about-the-ico/news-andevents/news-and-blogs/2019/01/scl-elections-prosecuted-for-failing-to-comply-with-enforcement-notice.

101

Tr. 1 at 109-110. DPA 2018 has a broad “public interest” test that permits the ICO to exchange information

even in matters involving conduct that would not be an offense in the United Kingdom. Tr. 1 at 152.

102

Tr. 1 at 110. See Ashley Madison (Sept. 27, 2017), FED. TRADE COMM’N, https://www.ftc.gov/enforcement/casesproceedings/152-3284/ashley-madison.

103

Tr. 1 at 110-11.

104

Tr. 1 at 108. See GLOBAL PRIVACY ENFORCEMENT NETWORK, https://www.privacyenforcement.net/; INT’L CONF. OF

DATA PROTECTION AND PRIVACY COMMISSIONERS, https://icdppc.org; UNSOLICITED COMM. ENFORCEMENT NETWORK,

https://www.ucenet.org/.

105

Tr. 1 at 115.

106

Tr. 1 at 111-12. See Int’l Trade Admin., PRIVACY SHIELD FRAMEWORK, https://www.privacyshield.gov; APEC, CROSSBORDER PRIVACY RULES SYSTEM, http://cbprs.org. On July 16, 2020, the European Court of Justice issued a judgment

declaring invalid the European Commission’s Decision 2016/1250/EC of July 12, 2016 on the adequacy of the EU83

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U.S. Privacy Shield Framework. The FTC issued an update in response to this ruling, FTC, Update on the Privacy

Shield Framework, https://www.ftc.gov/tips-advice/business-center/privacy-and-security/privacy-shield (July 21,

2020).

107

Tr. 1 at 136-38.

108

Tr. 1 at 137.

109

Tr. 1 at 140-41.

110

Tr. 1 at 115.

111

Tr. 1 at 116.

112

Tr. 1 at 120.

113

See Consumer protection cooperation regulation, EUROPEAN COMM’N, https://ec.europa.eu/info/law/lawtopic/consumers/consumer-protection-cooperation-regulation_en.

114

Tr. 1 at 123.

115

Tr. 1 at 122. See Antitrust: Commission opens formal investigation into possible collusion between BMW,

Daimler and the VW group on clean emission technology (Sept. 18, 2018), EUROPEAN COMM’N,

https://europa.eu/rapid/press-release_IP-18-5822_en.htm.

116

The European Commission has concluded that the companies are honoring their commitments. Tr. 1 at 122.

Benassi noted that this matter was based on cooperation with the traders, not enforcement. If the car rental

companies had not cooperated, then the EC would have pursued coordinated enforcement by EU member states.

Tr. 1 at 122-23.

117

Tr. 1 at 125.

118

Tr. 1 at 126-27. Currently, there are three partnerships: the Toronto Strategic Partnership, the Alberta

Partnership, and the Pacific Partnership. There are efforts to renew the Montreal Partnership. Tr. 1 at 142.

119

For example, the Toronto Strategic Partnership includes a minimum of eight different organizations: the Federal

Trade Commission, the Royal Canadian Mounted Police, the U.S. Postal Inspection Service, Toronto Police, the

Ontario Provincial Police, the Ministry of Consumer Government Services, the Competition Bureau of Canada, and

the Ministry of Finance. Tr. 1 at 126, 128.

120

Tr. 1 at 126-27.

121

Tr. 1 at 128.

122

Tr. 1 at 129; MEMORANDUM OF UNDERSTANDING BETWEEN THE UNITED STATES FEDERAL TRADE COMMISSION AND THE ROYAL

CANADIAN MOUNTED POLICE ON MUTUAL ENFORCEMENT ASSISTANCE IN CONSUMER FRAUD MATTERS (Mar. 1, 2017),

https://www.ftc.gov/system/files/documents/cooperation_agreements/mou_ftc_and_rcmp_mutual_enforcemen

t_assistance.pdf. Working with partners in International Mass Marketing Fraud Working Group (IMMFWG), the

U.S. Department of Justice recently announced the largest ever nationwide elder fraud sweep in cooperation with

eight countries. See Justice Department Coordinates Largest-Ever Nationwide Elder Fraud Sweep (Mar. 11, 2019),

DEP’T OF JUSTICE, https://www.justice.gov/opa/pr/justice-department-coordinates-largest-ever-nationwide-elderfraud-sweep-0.

123

Tr. 1 at 130.

124

Id.

125

Tr. 1 at 145.

126

Tr. 1 at 144. See also Fortin testimony, Tr. 1 at 75-76 (discussing “robust” screening process that requires

signatories to demonstrate that they have “the legal capacity to cooperate and share information with [their]

foreign counterparts”); INT’L ORG. OF SEC. COMM’NS, https://www.iosco.org/; MMoU, supra note 15.

127

Tr. 1 at 149-51, 163-64. For compulsory process, the foreign authority must be a securities authority that is able

to provide reciprocal assistance and the use of process must be consistent with the public interest of the United

States.

128

Tr. 1 at 144.

129

Tr. 1 at 145.

130

Tr. 1 at 144-45.

131

Tr. 1 at 113-14. See General Data Protection Regulation, supra note 47.

132

Tr. 1 at 113.

133

Tr. 1 at 116-17.

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The FTC’s Role in a Changing World: Staff Recommendations and Report

Tr. 1 at 117.

Tr. 1 at 118. See also Fortin testimony, Tr. 1 at 86-87, discussing administrative arrangement regarding the

GDPR whereby non-EU signatories would provide additional safeguards so that EU authorities could continue to

use the MMOU to share information. See ADMINISTRATIVE ARRANGEMENT FOR THE TRANSFER OF PERSONAL DATA, supra note

92.

136

Tr. 1 at 131.

137

Tr. 1 at 165-66.

138

Tr. 1 at 142-43.

139

Tr. 1 at 146-47.

140

Id.

141

Tr. 1 at 160, 168-69.

142

Tr. 1 at 161-62.

143

Tr. 1 at 166.

144

Tr. 1 at 166-67.

145

Tr. 1 at 169.

146

Tr. 1 at 169-70.

147

Tr. 1 at 173-77.

148

Tr. 1 at 173-78, 210-11.

149

Tr. 1 at 173-77, 191.

150

Tr. 1 at 191, 210-11.

151

Tr. 1 at 175, 177.

152

Tr. 1 at 174, 183-84.

153

Tr. 1 at 175-78, 184-85.

154

Tr. 1 at 210.

155

Tr. 1 at 175.

156

Tr. 1 at 179, 182, 217-19.

157

Tr. 1 at 180-81.

158

Tr. 1 at 181, 217-19.

159

Tr. 1 at 216-17.

160

Tr. 1 at 195-98.

161

Tr. 1 at 174, 177, 179, 188.

162

Tr. 1 at 174, 177, 179-81, 188-89, 191, 210-11.

163

Tr. 1 at 209-10.

164

Tr. 1 at 183, 209-10, 212, 219. A waiver of confidentiality enables an agency to share the submitter’s

confidential business information with another reviewing agency, facilitating joint discussion and analysis. For

further information see International Waivers of Confidentiality in FTC Antitrust Investigations, FED. TRADE COMM’N,

https://www.ftc.gov/policy/international/international-competition/international-waivers-confidentiality-ftcantitrust; Antitrust Guidelines for International Enforcement and Cooperation, supra note 23, at § 5.1.4.

165

Tr. 1 at 177, 179, 188.

166

Tr. 1 at 177, 179, 188, 212.

167

Tr. 1 at 188.

168

Tr. 1 at 208.

169

Tr. 1 at 188, 208.

170

Tr. 1 at 188.

171

Tr. 1 at 190.

172

Tr. 1 at 189-90. The MMOU allows for sharing confidential information and confers power to obtain the

production of information and testimony for foreign regulators. See MMoU, supra note 15.

173

Tr.1 at 188-90. See SAFE WEB Act, supra note 3.

174

Tr. 1 at 174, 177, 179-81, 188-89, 191.

175

Tr. 1 at 203, 205-06, 211.

176

Tr. 1 at 218.

134

135

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The FTC’s Role in a Changing World: Staff Recommendations and Report

Tr. 1 at 191-93.

Id.

179

Tr. 1 at 191.

180

Tr. 1 at 175, 199.

181

Tr. 1 at 199-200.

182

Tr. 1 at 185.

183

Tr. 1 at 182-83, 186.

184

Tr. 1 at 186.

185

See SAFE WEB Act § 6, 15 U.S.C. § 57(b)-2(b)(6).

186

Tr. 1 at 213-16.

187

Tr. 1 at 216-18, 221-22.

188

Tr. 1 at 189-90, 191-93, 200-02, 218-19, 222-23, 226.

189

Tr. 1 at 230-31.

190

Tr. 1 at 231.

191

Tr. 1 at 228-29.

192

Tr. 1 at 232.

193

Tr.1 p.235-36

194

Tr. 1 at 234-35.

195

Tr. 1 at 280.

196

Tr. 1 at 241-42. See THE INFORMATION TECHNOLOGY ACT, available at

https://indiacode.nic.in/bitstream/123456789/1999/3/A2000-21.pdf.

197

Tr. 1 at 243.

198

Tr. 1 at 247.

199

Tr. 1 at 248.

200

Tr. 1 at 247.

201

Tr. 1 at 244.

202

Tr. 1 at 263-64.

203

Tr. 1 at 284.

204

Tr. 1 at 252-53. See AUTORITÉ DE LA CONCURRENCE & COMPETITION AND MKTS. AUTH., The Economics of Open and

Closed Systems, http://www.autoritedelaconcurrence.fr/doc/economics_open_closed_systems.pdf; Competition

Law and Data, supra note 66.

205

Tr. 1 at 254.

206

Tr. 1 at 255. See, e.g., INT’L COMPETITION NETWORK ADVOCACY WORKING GRP., Report on ICN Members’ Recent

Experiences (2015-2018) in Conducting Competition Advocacy in Digital Markets (2019),

https://www.internationalcompetitionnetwork.org/wpcontent/uploads/2019/06/AWG_AdvDigitalMktsReport2019.pdf.

207

Tr. 1 at 253. See AUTORITÉ DE LA CONCURRENCE, The French Autorité de la concurrence and the German

Bundeskartellamt launch a joint project on algorithms and their implications on competition (June 19, 2018),

http://www.autoritedelaconcurrence.fr/user/standard.php?lang=en&id_rub=684&id_article=3197.

208

Tr. 1 at 255-56.

209

Tr. 1 at 257-58.

210

Tr. 1 at 266-72, 276.

211

Tr 1 at 280.

212

Tr. 1 at 280.

213

Tr. 1 at 288. See INT’L CONF. OF DATA PROTECTION AND PRIVACY COMMISSIONERS, DECLARATION ON ETHICS AND DATA

PROTECTION IN ARTIFIC[I]AL INTELLIGENCE, https://icdppc.org/wp-content/uploads/2018/10/20180922_ICDPPC-40th_AIDeclaration_ADOPTED.pdf.

214

Tr. 1 at 288-89.

215

Tr. 1 at 289.

216

Tr. 1 at 251. The law will take effect in August 2020.

217

Tr. 1 at 290-91.

177

178

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The FTC’s Role in a Changing World: Staff Recommendations and Report

Tr. 1 at 291-92

Tr. 1 at 293.

220

Id.

221

Tr. 2 at 5.

222

Tr. 2 at 9-10.

223

Tr. 2 at 10.

224

Tr. 2 at 11-12.

225

Tr. 2 at 10.

226

Tr. 2 at 12. See OECD, supra note 56; See INT’L COMPETITION NETWORK, supra note 37.

227

Tr. 2 at 13.

228

Id.

229

Tr. 2 at 14.

230

Tr. 2 at 28.

231

Tr. 2 at 24.

232

Tr. 2 at 21-25.

233

Tr. 2 at 26-28.

234

Id.

235

Tr. 2 at 29-31. See INT’L COMPETITION NETWORK, ICN FRAMEWORK ON COMPETITION AGENCY PROCEDURES,

https://www.internationalcompetitionnetwork.org/wp-content/uploads/2019/04/ICN_CAP.pdf. In response to

the FTC’s questions for public comment, Professor D. Daniel Sokol of the University of Florida’s Levin College of

Law urged the FTC and all antitrust authorities to promote transparency and due process, “so that their decisionmaking is adequately informed and justified based on the economics and the factual record.” He highlighted the

tangible benefits of a system of robust procedural fairness safeguards, suggesting that with transparency,

communication between authorities and parties is improved, information asymmetries are diminished, and

authorities are better equipped to conduct effective enforcement and policymaking. See Comment Submitted by

D. Daniel Sokol, REGULATIONS.GOV, https://www.regulations.gov/document?D=FTC-2019-0002-0009.

236

Tr. 2 at 28.

237

Tr. 2 at 20-22, 35-37, 39-40, 42-43.

238

Tr. 2 at 24, 28, 35-37, 39-40, 42-43.

239

Tr. 2 at 20-22, 35-37.

240

Tr. 2 at 38.

241

Tr. 2 at 20-22, 35-37, 39-40, 42-43.

242

Tr. 2 at 54.

243

Tr. 2 at 49.

244

Tr. 2 at 73.

245

Tr. 2 at 72.

246

Tr. 2 at 66.

247

Tr. 2 at 66-67, 69.

248

Tr. 2 at 69.

249

Tr. 2 at 25-28, 55, 74-75.

250

Tr. 2 at 25-28, 55.

251

Tr. 2 at 49, 51, 53, 55.

252

Tr. 2 at 51. See Angela Huyue Zhang, Jingchen Liu & Nuno Garoupa, Judging in Europe: Do Legal Traditions

Matter?, 14(1) JOURNAL OF COMPETITION LAW & ECON., 144-178 (2018).

253

Tr. 2 at 35-36.

254

Tr. 2 at 35.

255

Tr. 2 at 35-36.

256

Tr. 2 at 36.

257

Id.

258

Tr. 2 at 41-43.

259

Tr. 2 at 42-43.

218

219

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The FTC’s Role in a Changing World: Staff Recommendations and Report

Tr. 2 at 41.

Tr. 2 at 39-42, 60-61.

262

Tr. 2 at 51-53.

263

Id.

264

Tr. 2 at 43, 58-61. Bignami cited a 2011 study finding significant movement toward an adversarial system in

Italy, Germany, the UK, and France. Tr. 2 at 58-59. See Francesca Bignami and R. Daniel Kelemen, Kagan's Atlantic

Crossing: Adversarial Legalism, Eurolegalism, and Cooperative Legalism in European Regulatory Style, George

Washington Univ. Law Sch. Pub. Law Research Paper No. 6 (2017).

265

Tr. 2 at 60.

266

Tr. 2 at 44-46.

267

Tr. 2 at 29-31, 56-57, 66, 69.

268

Tr. 2 at 66. See CNIL, https://www.cnil.fr/en/home.

269

Tr. 2 at 56, 66-67, 69.

270

Tr. 2 at 78-80.

271

Tr. 2 at 62, 68.

272

Tr. 2 at 62, 81.

273

Tr. 2 at 81.

274

Tr. 2 at 75-76.

275

Tr. 2 at 79-80.

276

Tr. 2 at 62.

277

Tr. 2 at 61-63, 77.

278

Tr. 2, at 85-86, 90.

279

Tr. 2 at 86.

280

Tr. 2 at 87-88.

281

Tr. 2 at 88-89.

282

Tr. 2 at 84, 88. See INT’L COMPETITION NETWORK, supra note 37.

283

Tr. 2 at 89. See Office of International Affairs, supra note 50; International Technical Assistance Program, supra

note 55; International Fellows Program, supra note 28. See also Comment Submitted by International Council for

Ad Self-Regulation, REGULATIONS.GOV, https://www.regulations.gov/document?D=FTC-2019-0002-0007.

284

Tr. 2 at 93. UNCTAD has “intergovernmental groups of experts” for both competition law and policy and

consumer law and policy. See UNITED NATIONS CONF. ON TRADE AND PROSPERITY, Competition Law and Consumer

Protection Policy, https://unctad.org/en/Pages/DITC/CompetitionLaw/Competition-Law-and-Policy.aspx.

285

Tr. 2 at 95-96. See UNITED NATIONS CONF. ON TRADE AND PROSPERITY, THE UNITED NATIONS SET OF PRINCIPLES AND RULES ON

COMPETITION, https://unctad.org/en/docs/tdrbpconf10r2.en.pdf; UNITED NATIONS CONF. ON TRADE AND PROSPERITY,

United Nations Guideline for Consumer Protection,

https://unctad.org/en/PublicationsLibrary/ditccplpmisc2016d1_en.pdf.

286

Tr. 2 at 96.

287

Tr. 2 at 94.

288

Tr. 2 at 110.

289

Id. Consumers International has more than 200 consumer organization, governmental and other civil society

members in over 100 countries. See CONSUMERS INT’L, https://www.consumersinternational.org/.

290

Tr. 2 at 124-25.

291

Tr. 2 at 128-29.

292

Id.

293

Tr. 2 at 112.

294

Tr. 2 at 131.

295

Tr. 2 at 111.

296

Tr. 2 at 112.

297

Tr. 2 at 125.

298

Tr. 2 at 127.

299

Id.

260

261

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The FTC’s Role in a Changing World: Staff Recommendations and Report

Tr. 2 at 101-04.

Tr. 2 at 143. See General Data Protection Regulation, supra note 47.

302

Tr. 2 at 103.

303

Tr. 2 at 104.

304

Id.

305

Tr. 2 at 105-108.

306

Tr. 2 at 109, 120.

307

Tr. 2 at 109.

308

Id.

309

Tr. 2 at 106.

310

Tr. 2 at 118-19.

311

Tr. 2 at 108, 119-120. See, e.g., United States-Mexico-Canada Agreement, OFFICE OF THE UNITED STATES TRADE

REPRESENTATIVE, https://ustr.gov/trade-agreements/free-trade-agreements/united-states-mexico-canadaagreement.

312

Tr. 2 at 99.

313

Tr. 2 at 99-100, and 121-22.

314

Tr. 2 at 99.

315

Tr. 2 at 124.

316

Tr. 2 at 133.

317

See COMISIÓN NACIONAL DE DEFENSA DE LA COMPETENCIA, https://www.argentina.gob.ar/defensadelacompetencia.

318

Tr. 2 at 136.

319

Tr. 2 at 136-37.

320

Tr. 2 at 116.

321

Tr. 2 at 139-40.

322

Id.

323

Tr. 2 at 138.

324

Tr. 2 at 141.

325

Tr. 2 at 141-42.

326

Tr. 2 at 143-44.

327

Id.

328

Tr. 2 at 169, 179, 190-91.

329

Tr. 2 at 147-50, 155.

330

Id., 166, 191.

331

Tr. 2 at 158-59.

332

Tr. 2 at 157.

333

Tr. 2 at 147-50, 154-55, 159-60. See OECD, supra note 56; INT’L COMPETITION NETWORK, supra note 37; GLOBAL

PRIVACY ENFORCEMENT NETWORK, supra note 102; ASSOC. OF SOUTHEAST ASIAN NATIONS, https://asean.org; EUROPEAN

UNION, supra note 97.

334

Tr. 2 at 158-59, 175-77, 190.

335

See AUSTRALIAN COMPETITION & CONSUMER COMM’N, Competition Law Implementation Program,

https://www.accc.gov.au/about-us/international-relations/competition-law-implementation-program-clip.

336

Tr. 2 at 177-80.

337

Tr. 2 at 177-79.

338

Tr. 2 at 169, 179, 191, 193, 198-99.

339

Tr. 2 at 199.

340

Id.

341

Tr. 2 at 175-76, 179; see EUROPEAN COMM’N, European Competition Network,

https://ec.europa.eu/competition/ecn/index_en.html; BRICS, http://infobrics.org/.

342

Tr. 2 at 149, 191, 195.

343

Tr. 2 at 179.

344

Tr. 2 at 162-67.

300

301

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The FTC’s Role in a Changing World: Staff Recommendations and Report

Tr. 2 at 163.

Id.

347

Tr. 2 at 166.

348

Tr.

348

Tr. 2 at 2 at 168-72.

349

Tr. 2 at 164-65.

350

Tr. 2 at 182-84.

351

Tr. 2 at 155, 195.

352

Tr. 2 at 155.

353

Tr. 2 at 157.

354

Tr. 2 at 182, 186-87, 191, 200.

355

Tr. 2 at 151, 158.

356

Tr. 2 at 189.

357

Tr. 2 at 189-90.

358

Tr. 2 at 180.

359

Tr. 2 at 168-71, 180-81.

360

Tr. 2 at 180-81.

361

Tr. 2 at 198.

362

Id.

363

Tr. 2 at 161, 171-72, 179, 193, 195.

364

Tr. 2 at 195.

365

Tr. 2 at 197.

366

Tr. 2 at 196.

367

Tr. 2 at 197-98.

368

Tr. 2 at 206.

369

Tr. 2 at 207; see INT’L COMPETITION NETWORK, supra note 37; OECD, supra note 56.

370

Tr. 2 at 208-9. See Agreement between the United States of America, the United Mexican States, and Canada

05/30/19 Text, OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE, https://ustr.gov/trade-agreements/free-tradeagreements/united-states-mexico-canada-agreement/agreement-between; KORU Final Text, OFFICE OF THE UNITED

STATES TRADE REPRESENTATIVE, https://ustr.gov/trade-agreements/free-trade-agreements/korus-fta/final-text.

371

Tr. 2 at 207-08. Recently active in over 22 jurisdictions, the FTC Technical Assistance Program conducted 36

missions in fiscal year 2018. See International Technical Assistance Program, supra note 55.

372

Tr. 2 at 210-11.

373

Tr. 2 at 209.

374

Tr. 2 at 209-11.

375

Tr. 2 at 215.

376

Tr. 2 at 211.

377

Id.

378

Tr. 2 at 212.

379

Tr. 2 at 210.

380

Tr. 2 at 213; see Antitrust Guidelines for International Enforcement and Cooperation, supra note 23.

381

Tr. 2 at 206, 213-15.

382

Tr. 2 at 213-14.

383

Tr. 2 at 215. See CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, INTERNATIONAL COMPETITION POLICY EXPERT

GROUP REPORT AND RECOMMENDATION (March 2017),

https://www.uschamber.com/sites/default/files/icpeg_recommendations_and_report.pdf.

384

Tr. 2 at 211-12, 220, 223-24, 233.

385

Tr. 2 at 220.

386

Tr. 2, at 225-26.

387

Tr. 2 at 221, 226. See also Comment Submitted by Centre for Information Policy Leadership, REGULATIONS.GOV,

https://www.regulations.gov/document?D=FTC-2019-0002-0005.

345

346

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The FTC’s Role in a Changing World: Staff Recommendations and Report

Tr. 2 at 226-27.

Tr. 2 at 220-21.

390

Id. See INFORMATION COMMISSIONER’S OFFICE, The Guide to the Sandbox (beta phase), https://ico.org.uk/fororganisations/the-guide-to-the-sandbox-beta-phase/. See also testimony of James Dipple Johnstone, Tr. 1 at 246

(“[W]e think the GDPR provisions around data protection impact assessments and our work around, for example,

regulatory sandboxes and innovation hubs with other regulators.”). See also Comment Submitted by Centre for

Information Policy Leadership, REGULATIONS.GOV, https://www.regulations.gov/document?D=FTC-2019-0002-0002.

391

Tr. 2 at 223-25.

392

Tr. 2 at 213-15, 225, 227-28.

393

Tr. 2 at 228.

394

Tr. 2 at 230-32. See INT’L ORG. OF SEC. COMM’NS, Fact Sheet, https://www.iosco.org/about/pdf/iosco-factsheet.pdf; MMoU, supra note 15; OECD, Directorate for Science, Technology and Innovation

Committee on Consumer Policy, https://www.oecd.org/sti/consumer/DSTI-CP(2018)7-FINAL.en.pdf.

395

Tr. 2 at 231-32.

396

Tr. 2 at 230-31. See FED. TRADE COMM’N, USA/Australia Mutual Antitrust Enforcement Assistance Agreement

(Apr. 1999), https://www.ftc.gov/policy/cooperation-agreements/usaaustralia-mutual-antitrust-enforcementassistance-agreement; FED. TRADE COMM’N, Annex A, https://www.ftc.gov/node/119104.

397

Tr. 2 at 234.

398

Tr. 2 at 235.

399

Tr. 2 at 235-6.

400

Tr. 2 at 243.

401

Tr. 2 at 239.

402

Tr. 2 at 209, 238, 240-44.

403

Tr. 2 at 242.

404

Tr. 2 at 238.

405

Tr. 2 at 245-48; see PRIVACY SHIELD FRAMEWORK, supra note 104.

406

Tr. 2 at 239.

407

Tr. 2 at 262-64.

408

Id.

409

Id.

410

Tr. 2 at 264-65.

411

Tr. 2 at 255.

412

Tr. 2 at 257.

413

Id.

414

Tr. 2 at 257-58.

415

Tr. 2 at 251.

416

Tr. 2 at 251-52.

417

Tr. 2 at 265-66.

418

Tr. 2 at 239, 247-49, 265.

388

389

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.