The Bizarre Case Of Elizabeth Warren’s Former Chief Of Staff Slamming FTC’s Bedoya For The Crime Of Being Honest
from the working-the-refs dept
There are some fairly strict rules about communicating with government agency employees regarding some matter that they’re adjudicating, without making those communications public. We want whatever administrative state we have to have any attempts to influence outcomes to be public for all to see. That’s why agencies have rules regarding what’s known as “ex parte” communications, when someone tries to communicate with someone adjudicating some sort of dispute about that dispute.
The standard practice is, if a lobbyist or an activist meets with an official to discuss a matter that is under active adjudication consideration, they’re supposed to file some details on the “ex parte” communication with the agency so that all sides are made aware of it.
Of course, there are times when that just doesn’t happen, and… that’s not good.
So it was interesting that some filings showed up recently on the FTC’s docket regarding its recent move to reopen its 2020 consent decree with Facebook (pre-Meta!) regarding some of its activities regarding products targeting kids and how data is collected. I haven’t looked closely at the details, and it’s possible that there’s a legitimate argument here from the FTC (I mean, it’s Facebook we’re talking about here — though Meta quickly moved to block the FTC).
However, even as the three current FTC Commissioners all voted in favor of this FTC action, one of them, Alvaro Bedoya, released a statement explaining that even as he voted in support of this move, he wasn’t entirely sure that the new concerns were really tied to the old order:
There are limits to the Commission’s order modification authority. Here, the relevant question is not what I would support as a matter of policy. Rather, when the Commission determines how to modify an order, it must identify a nexus between the original order, the intervening violations, and the modified order. Based on the record before me today, I have concerns about whether such a nexus exists for proposed Provision I.
In other words, even if the FTC has a legitimate concern about the products and data collection practices, it looks like the FTC may be trying to take a shortcut. Rather than bringing a full action, and having that lead to a new consent decree, it’s claiming that the old consent decree was violated, and therefore it can modify that. And Bedoya is noting that it’s not entirely clear that that’s the case. Effectively, he’s saying that without more info, it looks like the FTC is trying to cut corners.
For what it’s worth, I’ve followed Bedoya’s work for many years, both as a congressional staffer (where he was always one of the smartest, most thoughtful, staffers on privacy issues, even if I didn’t always agree with him) as well as when he went into academia afterwards. As far as I can recall, I’ve never spoken with him, but I was happy that he was nominated to the FTC.
I think the statement above is indicative of the kind of integrity that Bedoya has, and why I’ve always appreciated his thinking. He highlights that the process matters separate from the policy goal, and is making it clear that we shouldn’t cut corners to achieve a good policy outcome, when there are proper ways to reach those outcomes. That, by itself, is integrity.
So too was the thing that more recently showed up on the docket: Bedoya submitting various “ex parte communications” from a bunch of activists who were furious at him for his statement, and who texted him and some of his staffers in angry, and somewhat threatening tones. The worst of it came from former Elizabeth Warren chief of staff, Dan Geldon, who angrily texted Bedoya to yell at him for making that statement.
Bedoya, rightly recognizing that he can’t be privately communicating with anyone regarding this matter didn’t reply, and so at some later date but it’s at an AM time rather than PM, so it must be a later date (unclear if it’s the next day, but it is clear that Bedoya took screenshots of these soon after they came in, likely recognizing the nature of these ex parte communications) snidely complaining about Bedoya’s lack of response, and talking about how they did communicate when Geldon apparently helped Bedoya get confirmed:
“Very telling that you don’t even respond to text messages now that you don’t need help getting confirmed. That pretty much says it all.”
Yes, what it says is that Bedoya knows darn well that he can’t be privately discussing this matter while it’s an ongoing issue before the Commission. And, of course, he could respond during his nomination because that had nothing to do with an ongoing matter over which he had to adjudicate a regulatory matter.
Geldon also texted a staffer who works for Bedoya, and approached him at an event (both of which are also reported in the document). The staffer responds to Geldon and makes it clear he should knock off the ex parte communication as it’s inappropriate for them to have any private communications regarding an ongoing manner, and Geldon still feels the need to follow it up by telling the staffer to tell others that Bedoya’s (pretty fucking benign) statement ws “inexcusable and unforgivable,” before going on to basically threaten Bedoya:
No, dude, what’s inexcusable and unforgivable is thinking that you have the right to privately communicate and pressure an FTC Commissioner without revealing it publicly.
There are a few other communications included in the file, but most are just others expressing their “disappointment” in general terms, and not as aggressive and offensive as Geldon’s bullying.
Look: I get it. There is a crew of people who want to attack “big tech” at any opportunity. Senator Warren was in that crew, as we’ve discussed before, so it’s no surprise that her former Chief of Staff is happy about the FTC’s move. But, as we keep explaining, if you want to take down big tech, do it legitimately. Don’t do weak shortcuts or just attacking for the sake of attacking.
Because these weak attacks are failing, and they’re undermining any legitimacy the FTC has to take on actual problems. There are real, and serious, problems throughout many industries, including tech, that the FTC can and should be taking on. But each time it tries to half-ass it, it makes the FTC look ridiculous.
Again, I wouldn’t be at all surprised if Meta is doing bad shit regarding data collection on kids. It sure rings true, given the company’s past actions. But that’s no excuse for taking a procedural shortcut, and kudos to Bedoya and the FTC Office of the General Counsel for noting that these communications should be on the docket.
Filed Under: alvaro bedoya, consent decree, dan geldon, elizabeth warren, ex parte communications, ftc, process
Companies: meta