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CFPB’s new innovation office to focus on competition instead of fintech sandboxes
On May 24, the CFPB launched the Office of Competition and Innovation, which will focus on competition and explore ways to “create market conditions where consumers have choices, the best products win, and large incumbents cannot stifle competition by exploiting their network effects or market power.” The new office will be housed under the Bureau’s Research, Markets and Regulation division, providing “greater access to resources to look at market-structure problems that create obstacles to innovation.” It replaces the Bureau’s existing Office of Innovation, which was established in 2018 and focused on allowing companies to apply for no-action letters and regulatory sandboxes in order to test specific product offerings. According to the Bureau, the agency will no longer offer these programs after a review established that the initiatives “proved to be ineffective and that some firms participating in these programs made public statements indicating that the Bureau had conferred benefits upon them that the Bureau expressly did not.”
The new office will focus on competition and explore ways to stop large banks and fintech lenders from “squeezing out smaller players” in the consumer finance market. It will also explore ways to ensure that consumers have their “walking rights” and can easily switch service providers. Additionally, the new office will research “structural problems” that create obstacles to innovation, examine dynamics between large and small players related to competition, identify ways to address commonplace obstacles such as access to capital and talent, examine financial data-sharing to ensure large financial institutions are not hoarding large volumes of digital data, and host events that explore barriers to entry and other obstacles, the Bureau said.
FTC gives Congress report on privacy and security
Recently, the FTC released a report to Congress regarding the Commission’s actions in strengthening measures to link data privacy and competition enforcement, among other things. The report responds to the Joint Explanatory Statement accompanying the Consolidated Appropriations Act of 2021, P.L. 116-260, which directed the FTC to “conduct a comprehensive internal assessment measuring the agency’s current efforts related to data privacy and security while separately identifying all resource-based needs of the FTC to improve in these areas.” The report highlights areas that the FTC is focusing on to improve the effectiveness of the Commission’s efforts to protect Americans’ privacy:
- Integrating competition concerns. The FTC intends to “spend more time on the overlap between data privacy and competition.” The report also points out that the FTC has a “structural advantage” compared to other agencies and will look with “privacy and competition lenses at problems that arise in digital markets.”
- Advancing remedies. The FTC is providing relief for consumers and deterring unfair or deceptive privacy and security practices though four remedies: (i) notifying harmed consumers; (ii) obtaining monetary remedies for harmed consumers; (iii) obtaining non-monetary remedial relief for consumers; and (iv) prohibiting companies from benefitting from illegal data collection.
- Focusing on digital platforms. The FTC intends to increase its focus on the data practices of dominant digital platforms, which includes focusing on order enforcement.
- Expanding the FTC’s guidance and understanding of the consumer protection and competition implications of algorithms. The FTC intends “to deepen [its] understanding of the consumer protection and competition risks associated with algorithms and to expand upon the guidance that [it has] provided to businesses on using algorithms and AI truthfully, fairly, and equitably.”
Among other things, the report also urges Congress “to clarify Section 13(b) of the FTC Act and shore up the FTC’s ability to enjoin illegal conduct and revive its authority return to consumers money they have lost, which will greatly assist [the FTC’s] efforts to protect consumers.” The report further notes that the FTC will continue to push Congress to enact privacy and data security legislation, enforceable by the FTC.
In a statement released on October 1, FTC Chair Lina Khan stated the agency “should approach data privacy and security protections by considering substantive limits rather than just procedural protections, which tend to create process requirements while sidestepping more fundamental questions about whether certain types of data collection and processing should be permitted in the first place.”