Trump FTC Pick Wants to Avoid AI Crackdown, Target ‘Censorship’

President-elect Donald Trump’s pick to run the Federal Trade Commission wants to zero in on alleged censorship by Big Tech and promote innovation in the AI market—offering competing enforcement priorities for the agency’s tech policy.

Andrew Ferguson, whom Trump on Tuesday named as his FTC chair pick, has since April been a Republican member of the commission, where he’s aligned with the Biden administration in terms of its broader focus on tech—while differing in his priorities.

In a statement Tuesday night, Ferguson vowed to “end Big Tech’s vendetta against competition and free speech.”

He’s also preached caution with respect to regulating artificial intelligence. In September, he criticized the FTC’s call for comprehensive AI legislation, saying a regulatory response at this early stage could squelch innovation in the US tech sector.

Ferguson occupies an unusual “middle position” as a Big Tech skeptic, John Yun, a George Mason University law professor and former FTC economist, said. “It’s not common to see aggression on one end and an innovation focus on the other.”

Ferguson’s mandate at the FTC will consist of enforcing the nation’s competition and consumer protection laws. He will enter the chair’s office as the Biden administration prepares to hand off a slate of in-progress cases and investigations targeting Big Tech. At the FTC, that includes monopoly lawsuits against Amazon.com Inc. and Meta Platforms Inc., and a broad antitrust investigation opened in November into Microsoft Corp.

Ferguson’s public comments suggest large tech platforms could get less attention over investments in AI development, while facing added scrutiny over content-moderation policies.

But that also raises questions about what that enforcement will actually look like and whether it would be “motivated by something more personal or political to Trump,” said Rebecca Haw Allensworth, a law professor at the University of Vanderbilt.

“What exactly would Ferguson do as a chair of the FTC to target censorship that wouldn’t run afoul of the First Amendment?” she asked. “What specific choices would he make to allow AI to flourish? It’s very unclear.”

The FTC has authority to protect consumers from unfair and deceptive practices, but proving that any alleged anti-conservative bias harms consumers could require the same kind of novel legal theory from the agency that Ferguson has criticized when used under Chair Lina Khan’s watch and applied to issues like AI discrimination.

“He’s clearly declared war on left-wing AI bias, but the FTC authority is limited,” said Maneesha Mithal, partner at Wilson Sonsini Goodrich & Rosati and former associate director of the FTC’s Privacy and Identity Protection Division. “The practice has to be deceptive or unfair under the FTC Act, and I think that’s a big open question as to what authority they’re going to use to try to implement that.”

‘Private Power’

Ferguson has said that Big Tech platforms’ content moderation around Covid-19 and the 2020 election, including Meta and Twitter restricting access to a New York Post story on then-candidate Joe Biden’s son Hunter, helped shape his current views on antitrust.

“I became open to the prospect that there are agglomerations of private power that can be very dangerous to human liberty,” Ferguson, a former Virginia solicitor general and aide to Senate Republican leader Mitch McConnell (R-Ky.), said on “The Dynamist” podcast in November.

Ferguson has framed his interest in lighter-touch AI regulation in part as a way to boost competition in tech.

“A knee-jerk regulatory response will only squelch innovation, further entrench Big Tech incumbents, and ensure that AI innovators move to jurisdictions friendlier to them—but perhaps hostile to the United States,” he said in a September statement.

The sentiment appears consistent with the incoming administration. Trump has already vowed to repeal a Biden executive order establishing security and privacy protections on AI, and he named venture capitalist David Sacks as a White House AI and crypto czar.

Enforcement History

Ferguson’s approach to AI won’t be limited to his attitudes around competition. As a commissioner, he’s already grappled with the agency’s unfairness and deception authorities under Section 5 of the FTC Act in enforcement actions against AI companies.

Ferguson has supported the agency in cases when he agreed there was clear deception but has dissented with the Democratic majority when it comes to how those AI tools may be used by others.

“It’s clear from his past votes that where there is clear deception that he has been generally supportive of those cases,” Mithal said.

Ferguson’s narrower view of harms, however, is likely where his Republican majority will split with Khan, the departing Democratic chair. He dissented from an enforcement order against Ryter, an AI tool used to generate fake reviews.

Calling any generative AI illegal simply because it could be potentially used for fraud is “inconsistent with our precedents and common sense,” he said. “And it threatens to turn honest innovators into lawbreakers and risks strangling a potentially revolutionary technology in its cradle.”

Ferguson also recently concurred in an enforcement action against IntelliVision for misrepresenting the accuracy of its AI detection and its ability to perform its service with “zero gender or racial bias.”

Ferguson agreed that the company had committed a deceptive act by making false claims. But he said his vote doesn’t mean he believed the commission was voting to “to fix the meaning of ‘bias’” to require software to produce equal results “across race and sex groups.”

That break with the majority signals a likely dialing back of the agency’s enforcement efforts to address the harms of algorithmic gender and race discrimination under Ferguson.

“It’s fair to expect different perspectives of what constitutes consumer harm,” said Aaron Burstein, partner at Kelley Drye & Warren LLP and former FTC attorney.