Joint Statement of Commissioners Rebecca Kelly Slaughter & Alvaro M. Bedoya in response to DOGE activities at the FTC 

    In reaction to DOGE activities at the FTC, Commissioners Rebecca Kelly Slaughter & Alvaro M. Bedoya1 released the following statement:

    Recent press reports indicate that DOGE staffers have arrived at the Federal Trade Commission. This threatens the basic functions of the FTC and the markets it protects. The FTC collects and retains extremely sensitive and confidential business data. This data can move markets. It can certainly change the competitive dynamics in any industry. Under no circumstances should DOGE be able to access this data. We are deeply concerned that they may do it anyway. These are the legal requirements that the Chairman is bound to respect and the questions that he needs to answer to assure the public, and those the Commission regulates, that the extraordinarily sensitive data the FTC possesses is being safeguarded as required by law.

    The Commission has extensive legal obligations to protect the information under its control from disclosure; the Chairman has an obligation to secure such information from improper access by any individual outside of the Commission. 

    The FTC collects significant amounts of potentially market-moving confidential business information, which is protected as controlled unclassified information (CUI).2 The disclosure of this information to anyone outside the agency is generally prohibited by statute, as well as by federal regulations and agency rules. We are deeply worried about the legal risks to agency staff and to the institution, as well as the agency’s ability to deliver on its vital mission, should access to these data be demanded by anyone outside of the Commission, especially those who are active market participants. 

    The statutes mandating the confidentiality of FTC data are detailed and explicit. Disclosure of confidential information obtained by the FTC is a federal crime.3 An entire section of the FTC Act, 15 U.S.C. § 57b-2, titled “Confidentiality,” governs the confidentiality of information received by the agency. This section provides particular confidentiality rules for material received “pursuant to compulsory process in an investigation.”4 This section also makes clear that any other information “obtained by the Commission . . . shall be considered confidential when so marked by the person supplying the information and shall not be disclosed,” unless the Commission determines that the information is “not a trade secret or commercial or financial information.”5 Additional specific provisions protect trade secrets or confidential commercial information the Commission obtains from any person6 and premerger notification filings made pursuant to the Hart-Scott-Rodino Act.7

    Collectively, these statutes provide few exceptions to their prohibitions on disclosure, limited generally to disclosure to “appropriate” Federal and state “law enforcement agencies” and only if the information will be “maintained in confidence” and used only for “official law enforcement purposes”8 or to Congress.9 Confidential information received by the Commission is generally exempt from the federal Freedom of Information Act and other public-disclosure laws.10 These limited exceptions for disclosure make clear that no other disclosure to any other part of the government or to any market participant is legal. 

    These statutory requirements are reinforced by federal regulations as well as agency rules. The agency takes these rules so seriously that the staff undergo regular training to remind them of these requirements, and there are very specific processes in place to ensure no confidential business information is illegally disclosed. 

    In addition to being legally required, protecting the confidentiality of FTC information is critical to the ability of the agency to execute its statutory mission effectively. If market participants do not trust that we will protect their trade secrets and confidential business information, they will not provide it to us. Furthermore, disclosure of such information, especially to other market participants, could enable self-dealing and corruption that would undermine the freedom and fairness of the markets we are charged with protecting. 

    In Chairman Ferguson’s dissent on the Southern Glazer’s matter, he articulated a belief that the Commission cannot choose which duly promulgated laws it will follow. He said, “The Executive Branch should not categorically and publicly refuse to enforce laws that Congress has passed and the President has signed. The separation of powers forbids the suspension of the laws merely because of a policy disagreement with that law.”11 That same principle must apply to the duly promulgated laws that protect the confidentiality of information controlled by the Commission, even from other parts of the executive branch—and especially from non-governmental market participants. 

    We understand that DOGE representatives have been onboarded to the FTC as staffers of the Commission, rather than non-staff visitors. While this may be an attempt to mitigate the risks posed by DOGE review of the FTC, those risks remain substantial, because they are coming from an arm of the executive branch not authorized by Congress and already known to be full of active market participants. Even if these DOGE FTC employees focus primarily on contracts and vendor relationships rather than particular case files, they may still access substantial non-public data. For example, our contracts for expert witness testimony necessarily reveal information about ongoing, nonpublic law enforcement investigations. 

    Any DOGE access to this kind of data is a problem. But at a bare minimum, the Chairman must answer the following specific questions about how he will ensure that FTC-controlled data is properly protected consistent with our statutory obligations:

    • How many DOGE representatives have been or will be onboarded, and what is their employment status? 
    • Where in the organizational structure of the agency will DOGE representatives be located? 
    • How will their work be supervised, and by whom? 
    • What technological access and permissions will these representatives be granted to agency files? Specifically, will they be able to access folders and files on the system for Commissioners’ offices? For specific case teams? For the Premerger Notification Office, which houses HSR merger filings? For the Human Capital Management Office, which houses all personnel records? 
    • For files they can access, what level of permissions will they have? Read-only, or will they be able to write, copy, transfer, or edit data? 
    • What procedures will be put in place to ensure they do not share any non-public information they learn? 

    As a general matter, the Chairman must observe data minimization practices here and grant these accounts access only to the parts of the network they need to access—as is the case with all FTC employees. Further, they should have the ability only to “read” this information, not to copy or otherwise transfer the data outside of the agency, and not to alter or delete. OCIO should not grant these accounts the technical capability to install software on the network. In particular, granting DOGE accounts technical access to law enforcement case files, the files of Commissioners and their staffs, or the files of Administrative Law Judges and their staffs would create a substantial risk of the unlawful disclosure of confidential information, about which the Chairman has said he is concerned. 

    In order to substantiate compliance with our statutory confidentiality requirements, the Chairman should ensure that there are detailed records related to any DOGE representative’s permissions, justifications, and access history. Unless he has the ability to show which parts of the network they actually accessed, we will have to assume that they have accessed any part of the network that they have the technical capability to access. 

    1. It is the position of this Administration that we are no longer commissioners. However, the clear language of the Federal Trade Commission Act and binding Supreme Court precedent prohibits this no-cause removal. See generally 15 U.S.C.§ 41; Humphrey’s Executor v. United States, 295 U.S. 602 (1935). Accordingly, it is our position that, under binding Supreme Court precedent, our termination was unlawful and ineffective and therefore we remain Federal Trade Commissioners, even though our purported termination is preventing us from conducting the formal duties of commissioners at this time. On Thursday, March 27, we filed suit to clarify our continued status as commissioners, and we intend to seek prompt relief from the court to confirm our status as Commissioners. ↩︎
    2. See 32 C.F.R. § 2002.4(h) (defining CUI as “information the Government creates or possesses, or that an entity creates or possesses for or on behalf of the Government, that a law, regulation, or Government-wide policy requires or permits an agency to handle using safeguarding or dissemination controls”). The agency also collects and protects substantial personally identifying information (PII) of complainants and witnesses, as well as the PII of our own personnel, the disclosure of which is also restricted under law. ↩︎
    3. See 15 U.S.C. § 50 (“Any officer or employee of the Commission who shall make public any information obtained by the Commission without its authority, unless directed by a court, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine not exceeding $5,000, or by imprisonment not exceeding one year, or by fine and imprisonment, in the discretion of the court.”).  ↩︎
    4. Id. § 57b-2(b)(3)(C) (“[N]o documentary material, tangible things, reports or answers to questions, and transcripts of oral testimony shall be available for examination by any individual other than a duly authorized officer or employee of the Commission without the consent of the person who produced the material, things, or transcripts.”).  ↩︎
    5. Id. § 57b-2(c)(2). Even where the Commission determines that the material in question is not a trade secret or commercial or financial information and thus may be disclosed, the statute requires that the Commission provide 10 days advance notice to the submitter that disclosure is planned so that the submitter can seek an injunction against the disclosure. Id. ↩︎
    6. See id. § 46(f) (“[T]he Commission shall not have any authority to make public any trade secret or any commercial or financial information which is obtained from any person and which is privileged or confidential.”).  ↩︎
    7. See id. § 18a(h) (providing that “no information or documentary material” provided pursuant to the HSR Act “may be made public, except as may be relevant to any administrative or judicial action or proceeding”). ↩︎
    8. Id. § 57b-2(b)(6). See also id. § 46(f) (same). These sections also provide even more limited exceptions for disclosure to foreign law enforcement agencies. ↩︎
    9. See id. § 57b-2(b)(3)(C) (“Nothing in this section is intended to prevent disclosure to either House of the Congress or to any committee or subcommittee of the Congress, except that the Commission immediately shall notify the owner or provider of any such information of a request for information designated as confidential by the owner or provider.”); id. § 57b-2(d)(1)(A) (same); id. § 18a(h) (“Nothing in this section is intended to prevent disclosure to either body of Congress or to any duly authorized committee or subcommittee of the Congress.”). ↩︎
    10. See id. § 57b-2(f)(1) (“Any material which is received by the Commission in any investigation, a purpose of which is to determine whether any person may have violated any provision of the laws administered by the Commission, and which is provided pursuant to any compulsory process under this subchapter or which is provided voluntarily in place of such compulsory process shall not be required to be disclosed under section 552 of title 5 or any other provision of law, except as provided in paragraph (2)(B) of this section.”); id. § 18a(h) (“Any information or documentary material filed with the Assistant Attorney General or the Federal Trade Commission pursuant to this section shall be exempt from disclosure under section 552 of title 5 . . . .”). ↩︎
    11. Fed. Trade Comm’n, Dissenting Statement of Comm’r Ferguson in re Southern Glazer’s Wine and Spirits, LLC, at 1 (Dec. 12, 2024), https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-southernglazers-statement.pdf. ↩︎