Illusory Conflicts: Post-Employment Clearance Procedures and the FTC's Technological Expertise

42 Pages Posted: 19 Aug 2021

See all articles by Lindsey Barrett

Lindsey Barrett

Georgetown University Law Center

Laura Moy

Georgetown University Law Center

Paul Ohm

Georgetown University Law Center

Ashkan Soltani

University of California, Berkeley - School of Information

Date Written: July 6, 2021

Abstract

The federal government restricts what former employees can work on after they leave the government, and for good reason. These post-employment conflict restrictions attempt to address the “revolving door” problem, where employees take information learned from their position in government to unfairly advantage industry. But an unintended consequence of overbroad conflict rules is that they impede well-meaning, former federal employees from providing their knowledge and general expertise to other enforcement agencies with similar missions, such as those at the state level. This is playing out right now with FTC technologists, at a time when the agency—and, indeed, consumer protection agencies more broadly— desperately needs greater technical expertise. Three problems result: (1) former FTC technologists find themselves unable to contribute to the enforcement efforts of other agencies and plaintiffs’ attorneys aligned with the mission of the FTC, (2) some current FTC technologists are unwilling to work on important issues before the agency out of fear that doing so will limit their ability to work on related matters in the future, and (3) would-be technologists may be unwilling to take a position at the agency due to these concerns.

We explore the impact of federal conflict rules on technologists working with the FTC, consider how this impact has changed alongside changing circumstances and enforcement practices, and discuss policy implications. We conclude that unless the FTC reforms the way it administers its conflict rules, it risks losing the assistance of technological expertise— expertise of which it badly needs more, rather than less.

Suggested Citation

Barrett, Lindsey and Moy, Laura and Ohm, Paul and Soltani, Ashkan, Illusory Conflicts: Post-Employment Clearance Procedures and the FTC's Technological Expertise (July 6, 2021). Berkeley Technology Law Journal, Vol. 35, No. 3, 2021, Available at SSRN: https://ssrn.com/abstract=3895823

Lindsey Barrett (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue N.W.
Washington, DC 20001
United States

Laura Moy

Georgetown University Law Center ( email )

HOME PAGE: http://https://www.law.georgetown.edu/privacy-technology-center/

Paul Ohm

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9685 (Phone)

Ashkan Soltani

University of California, Berkeley - School of Information ( email )

102 South Hall
Berkeley, CA 94720-4600
United States

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