Ex-FTC Privacy Official Sees Ferguson Holding COPPA Rule Until Majority Arrives

President Donald Trump on Monday ordered a regulatory freeze, directing agencies to halt sending unpublished rules to the Federal Register until his administration has reviewed them (see 2501220083). The FTC under Chair Lina Khan voted 5-0 to issue a final rule on Jan. 16 updating regulations under the Children’s Online Privacy Protection Act (COPPA). Ferguson issued a concurring statement that said he wanted some changes in language related to parental consent (see 2501160068). The FTC declined comment Thursday on the potential for a delay on FR publication.

“I could see this being in limbo until there’s three Republican votes, and they vote on” Ferguson’s proposed changes, said Maneesha Mithal, who worked at the agency from 1999 to 2021 as associate director of the Division of Privacy & Identity Protection. Now an attorney at Wilson Sonsini, Mithal said during a George Mason University webinar there’s bipartisan support for the concept generally, but Trump’s regulatory freeze allows his administration to put its stamp on the rule.

Trump plans to nominate Mark Meador, a former staffer to Senate Antitrust Subcommittee ranking member Mike Lee, R-Utah., to serve on the commission. Khan is planning to leave office by the end of the month.

Adam Kovacevich, CEO of the Chamber of Progress, agreed with Mithal about the regulatory freeze. Items were “rushed at the end” of this administration’s tenure, and the COPPA proceeding highlights the “perils of that last-minute rush,” he said. However, he noted the sticking points in the COPPA rule are less controversial than some of the measures Khan passed with party-line votes.

Expect Ferguson to pursue enforcement remedies in privacy cases that look far different from those Khan pushed during her “war on corporations,” said Kovacevich. For example, he cited Ferguson’s recent statement agreeing with Meta’s objections to the FTC’s attempt to modify a 2020 consent order with the company, stemming from Facebook’s $5 billion settlement over the Cambridge Analytica data privacy scandal. Ferguson agreed with Meta that the FTC lacks the authority to modify the consent decree without the company’s approval. The commission argued it has authority to reexamine and alter the consent order, subject to a legal challenge before the U.S. Court of Appeals for the D.C. Circuit.

Ferguson said in his statement that the commission’s “loose use of the word ‘enforcement’ to describe order modification has now created considerable confusion and given rise to Meta’s argument that the Order to Show Cause is an illegal attempt at ‘enforcement.’”

Kovacevich noted how Commissioner Alvaro Bedoya questioned the agency’s authority when Khan’s unopposed majority voted 3-0, directing Meta to show cause as to why the order shouldn’t be modified (see 2305030059). Bedoya said at the time that when the commission attempts to modify an order, it must “identify a nexus between the original order, the intervening violations, and the modified order. ... I have concerns about whether such a nexus exists.”

Kovacevich said Ferguson’s recent statement was a “notable moment in privacy enforcement.”

Mithal said she expects the Trump FTC will pursue less aggressive privacy remedies. “One of the unique things of having a sitting commissioner elevated as chair is that we’ve seen the statements,” she said. “We don’t have to guess.”