Can the Growing Number Of Big Tech Regulators Who Go To Work For It Be Stopped?

This is how Washington has worked for decades. It is doubtful that the 'revolving door' will change without major legislation, which would be lobbied heavily against by former regulators now in the private sector and advantageously representing tech companies. JL


Adam Janofsky and Matt Drange report in Protocol:

The Federal Trade Commission occupies a powerful role that (impacts) the future of the technology industry. (But) dozens of former commission lawyers now work for companies across the industry, advising them on antitrust issues and other topics under the purview of the FTC. At least 72 lawyers and other former employees who left the agency from 2015 to 2018 now work for private law firms which count major tech companies as their clients. "One of your marketable skills is knowing how the agency works. And knowing people who work at the agency."

The Federal Trade Commission occupies a powerful role that could alter the future of the technology industry, investigating whether the biggest companies violated antitrust laws during their meteoric rise. But is the regulator's position compromised when those same tech giants hire from the FTC's ranks?

Dozens of former commission lawyers now work for big and small companies across the tech industry, advising them on antitrust issues and other topics under the purview of the FTC, a Protocol review found. Apple, for example, counts at least three former FTC attorneys on its high-powered legal team, with more than 24 years of experience at the agency among them. Multiple former employees who left the agency to work at tech companies said they were recruited by their firms while working at the FTC, opening up the kind of potential conflicts that concern critics.

At least 72 lawyers and other former employees who left the agency from 2015 to 2018 now work for private law firms, many of which count major tech companies as their clients, Protocol found, a step removed that some lawmakers say isn't enough to alleviate the "revolving door" concerns.

"People at the FTC who are looking to cash in are looking to cash in at a law firm, not a tech company," said one former FTC lawyer, who spoke on the condition of anonymity because his current employer is often the subject of merger and antitrust scrutiny. "One of your marketable skills is knowing how the agency works. And knowing people who work at the agency."

In interviews with Protocol, several former FTC staffers said they did not think the agency was compromised by the movement of employees to industry jobs, pointing to existing ethics policies that prevent staffers from switching sides to help companies defend matters that they once pursued as regulators.

But some lawmakers are not convinced. Last month, Sen. Josh Hawley, a Republican from Missouri, said he wanted to slow down the revolving door and "overhaul" the FTC. His proposal calls for, among other things, stricter ethics requirements, including a "cooling-off" period that would prohibit some employees from working at large companies altogether after they leave the agency.

"Officials at the FTC are supposed to enforce the law against big tech companies. … But many high-level officials begin working for big tech right after leaving the FTC," Hawley's proposal reads. "The lack of a sufficient cooling-off period raises the concern that senior FTC officials will be too timid to discharge their duties against big tech and other corporate giants because so many of them intend to ask those companies for jobs right away."

The FTC has taken significant action against tech firms in the past year, including imposing a record $5 billion penalty against Facebook for privacy violations. Last month, the commission expanded its antitrust investigation into big companies, ordering Amazon, Apple, Facebook, Microsoft and Alphabet to provide details about their acquisitions of smaller rivals over the past decade.

Hawley's proposal cites a 2019 report from the think tank Public Citizen, which found that more than 60% of top FTC officials, or 26 of 41, had "revolving door conflicts of interest involving work on behalf of the technology sector." The report covers 20 years and includes former FTC commissioners as well as the most senior staff at the agency, identifying instances where individuals worked on behalf of corporate interests both before and after joining the agency.

A spokesman for the FTC said the agency would not comment on the proposed legislation.

In an effort to put the issue in context, Protocol requested a list of all former FTC employees, including lawyers, paralegals, HR staff and interns, via a Freedom of Information Act request, then researched the names through records and interviews. We found that tech-related businesses are a popular but not dominant destination for FTC employees once they leave the agency.

Of the nearly 700 lawyers and other employees who left the FTC between 2015 and 2018, at least 40 now work for tech companies. At least 72 work for private law firms, and at least 82 hold other government jobs. The rest of the agency's former employees are either retired or are working in unrelated fields — or their current employment could not be verified.

Many of the highest-profile FTC alums who went on to work at large tech companies declined to comment for this story. They include Julie Brill, a former FTC commissioner who is now an attorney with Microsoft. When reached by phone, Brill told a Protocol reporter, "Yeah, I'm not going to comment," before hanging up. An Amazon spokesperson declined to comment on behalf of Joseph Breedlove, an economist at the company who spent more than 13 years at the FTC. So did former FTC Commissioner Joshua Wright, who as a law school professor reportedly received funding from Google for academic papers that supported the company's defense against antitrust allegations.

Some technology companies actively recruit senior staff members at the agency. One former FTC employee said her current employer tried to recruit her several times while she was at the agency because of her antitrust expertise. She asked not to be named because her company has recently been investigated by the agency.

Another former employee who left the FTC to work for a major tech company said she would not have joined the agency had she been subject to limitations on where she could work after leaving. "I wanted operational experience. My ultimate goal was to be at a Facebook or a Google. So yeah, that would have impacted my decision," said the former employee, who also spoke on the condition of anonymity. "I would never go back to the government knowing what I know now about stock compensation, the benefits and exposure to advanced technology … the government just doesn't offer that."

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Tech companies can attract FTC employees by offering substantial pay increases. Experienced staffers at the agency cap out at about $170,000 a year, while working as an antitrust lawyer for a tech firm or law firm representing those companies can pay two to three times that salary, or more.

Whitney Merrill, a former staff attorney at the FTC, said she joined the video game company Electronic Arts in 2017 in large part because of the pay bump. "I was based in San Francisco," she said, "and it's very difficult to live there on a government salary, especially if you have student loan debt."

Merrill said she had a positive experience at the FTC and would be open to rejoining the agency in the future. She believes her experience in the private sector would improve her work, because it showed her how companies struggle with privacy safeguards and complex systems. As for potential conflicts of interest, Merrill cited the steps the FTC already takes to prevent former regulators from representing the companies they once investigated. She said she was instructed during her onboarding at the FTC to maintain a list of cases she worked on. When she left the agency, ethics officials reminded her of her confidentiality and conflict-of-interest obligations.

"Everyone I've worked with takes it very seriously," Merill said. "They don't want to ruin their careers."

The FTC's ethics rules and guidelines include a lifetime ban on representing clients concerning matters they "personally and substantially" worked on at the FTC, as well as a two-year ban for matters over which they had an official responsibility while at the agency. Senior employees — a category determined by pay that generally includes commissioners, bureau directors and other senior executives — are subject to a one-year cooling-off period in which they're banned from representing others to the FTC "concerning any official matter."

Megan Gray, an attorney in the commission's enforcement division until 2018, said the rules can effectively limit where ex-FTC employees work. When companies settle a complaint with the agency, they often agree to decades-long stipulations in which they regularly report to the FTC on compliance. This would make it difficult to work at one of those companies in their area of expertise, because reporting to the FTC would likely violate the lifetime ban, she said.

For example, Gray worked on a case against Google during her time at the FTC, and now believes she would never be able to work on certain areas for the company. "Not that I was going to work for Google, but I was surprised I could never work for them on privacy issues for the rest of my life. No one ever told me that before I took the case on," said Gray, who now works as general counsel at the privacy-focused search engine DuckDuckGo.

One reason why more FTC employees don't go on to work at large companies is there aren't many jobs for technologists at the agency to begin with. "There's really only two ways to work for the FTC" as a technologist, said Cara Bloom, a cybersecurity researcher at Mitre who interned at the agency in 2016. Aside from the internship program that Bloom and many others who now work in Silicon Valley went through, the only tech-oriented jobs at the FTC are a handful of investigators assigned to the Office of Technology and the chief technologist role, a one-year term typically held by a high-profile academic.

It's unclear how much traction Hawley's proposal will receive in Washington this spring. If recent efforts to close revolving doors at other agencies are any indication, perhaps not much. In 2014, the Securities and Exchange Commission introduced rules requiring former senior staff who go on to represent companies regulated by the agency to refrain from contacting their former colleagues for at least a year. The move came after political pressure to extend the cooling-off period to three years.

Other federal agencies have similar cooling-off periods. What makes Hawley's proposal remarkable is that it seeks to go further, banning some FTC employees from working for private companies altogether.

Were Hawley's proposal to be implemented, "It may chill some people who want to go and spend some time in public service," said Marc Fagel, who spent more than 15 years at the SEC before joining the law firm Gibson Dunn. Fagel questioned the premise of the idea, that attorneys at the FTC won't be willing to enforce antitrust law against companies they might later work for.

"People who are willing to go into public service, like I did, do it because they appreciate the mission of that agency. If you are working in enforcement, the way you get ahead and make yourself marketable is by bringing big cases," Fagel said. "The thought that someone in enforcement isn't going to pursue investigations … you would really be kneecapping your career."