• by Wendy Davis  @wendyndavis, September 20, 2023

Congress is in the best position to create new privacy rules, Republican Federal Trade Commission nominees Andrew Ferguson and Melissa Holyoak told the Senate Commerce Committee Wednesday.

“It is probably best for Congress to speak here, to have comprehensive privacy legislation in this space,” Holyoak, Utah Solicitor General, said in response to a question from Senator John Hickenlooper (D-Colorado) about the FTC's role in protecting consumers' data.

Ferguson, Solicitor General of Virginia, agreed.

“I think that the FTC as an agency has some experience in this, and if Congress were looking for an agency to lodge this authority, I think the FTC is a good candidate. But I think the most important thing here is for Congress to take the lead,” he said.

The statements came at a Senate Commerce Committee hearing to consider whether to confirm Holyoak and Ferguson and re-confirm commissioner Rebecca Kelly Slaughter, first appointed in 2018.

Slaughter told lawmakers she also wants Congress to pass privacy legislation, but added the FTC already is empowered to regulate unfair or deceptive practices deemed prevalent.

“Even though I think Congress should move forward, I have supported the FTC really making sure we're doing everything we can with the tools that we have right now,” she said.

“It's why I supported our ongoing open rulemakng proceeding on commercial surveillance and data security,” she added, referring to an initiative that could result in new privacy regulations.

Senator Marsha Blackburn (R-Tennessee) questioned all three about that regulatory proceeding.

Ferguson and Holyoak both told Blackburn they would support pausing the privacy initiative until Congress weighs in.

All three nominees backed a proposal by Senator John Thune (R-South Dakota) to revise Section 230 by allowing federal agencies to bring civil enforcement actions against tech companies over unlawful acts by users.

Slaughter said the agency's investigations “frequently” are hampered by Section 230, adding that when the law has been violated "there should not be a 'get out of jail free' clause for intermediaries."