Wyndham: Third Circuit Requests Briefing on Whether FTC Declared Unreasonable Cybersecurity Practices Are ‘Unfair’

Katherine Gasztonyi writes:

On February 20, the Third Circuit sent a letter to counsel in FTC v. Wyndham Worldwide Corp., identifying at least one topic that will be addressed in the upcoming oral argument regarding the parties’ dispute over whether the FTC has the authority to regulate companies’ data security practices: whether unreasonable cybersecurity practices are “unfair.” The letter requested that counsel be prepared to address the issue by answering three questions. First, whether the FTC has declared that unreasonably security practices are “unfair” through procedures provided in the FTA (sic) Act. Second, if not, whether the FTC is requesting that the federal courts determine that unreasonable cybersecurity practices are “unfair” in the first instance. And finally, whether federal courts have the authority to determine that unreasonable cybersecurity practices are “unfair” in the first instance under a case brought under 15 U.S.C. § 53(b) (providing authority for the Commission to bring suit to enjoin a person or entity that the Commission has reason to believe is violating or is about to violate a provision of the FTC Act). The letter further indicated that the Third Circuit may also request additional briefing on these topics.

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