Backing AT&T in 9th Circuit Case, Cause of Action Challenges FTC's Authority
Cause of Action Institute (CoA), which represented LabMD in its FTC fight (see 1701050044), filed an amicus brief Tuesday in the 9th U.S. Circuit Court of Appeals, backing AT&T Mobility against the FTC (see 1705090068). In September, the full court…
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will review the case, which could decide whether the agency has authority to regulate ISPs (see 1705100063). In its filing (in Pacer), CoA said the court's decision in the case could directly affect the nonprofit's ability to protect businesses from the agency in litigation in the circuit. "CoA is concerned that the FTC would weaponize, misinterpret, and exploit any dicta on matters not directly within the scope of the narrow issue presented (even if not briefed) in other ways to extra-statutorily expand its powers, as it has done before," the filing said. CoA said it's concerned about the "emerging pattern" of the FTC not waiting for legislation to allow the commission to regulate broad areas "that not only flips basic administrative law on its head but threatens the separation of powers vital to liberty." CoA said its brief provides a "different account" of the FTC's enforcement activities in privacy, data security and technology than offered by those supporting the commission. The FTC declined to comment. In the LabMD case, the agency alleged the medical-testing lab was liable for lax data security practices and exposing sensitive patient information. That case is now in the 11th U.S. Circuit Court of Appeals (see 1701050044).