On Friday, July 18, the Federal Trade Commission (FTC) issued an unusual press release inviting the public to comment on a petition to vacate or modify a 2021 consent order against Support King, LLC, d/b/a SpyFone.com, and its CEO Scott Zuckerman.

According to the release, Zuckerman has invoked a little-known procedure under 16 C.F.R. § 2.51 by which anyone subject to a final cease and desist order may petition the Commission to consider whether their order should be changed or set aside.

In his petition, Zuckerman argues his case – which he settled during the previous administration – was the product of overly aggressive enforcement in response to a damaging media campaign. According to Zuckerman, even though the agency had no evidence SpyFone actually harmed consumers, the FTC succumbed to media pressure to impose a “broad and burdensome” order with a mandated information security program.

Zuckerman says vacating his order would align with Chairman Andrew Ferguson’s push to reduce regulatory overreach by limiting enforcement actions to instances where the agency can prove consumers were harmed. He also argues his case was arbitrary and capricious and exceeded the FTC’s statutory authority.

What the petition doesn’t mention is anything about the underlying allegations of Zuckerman’s case. That is, that SpyFone used a hidden device hack to secretly capture and share data on people’s physical movements, phone use, and online activities. Or that the company sold real-time access to that data, which stalkers and domestic abusers could use to monitor victims’ physical movements and online activities. Or that SpyFone failed to safeguard the data it collected, leading to at least one breach.

Also not mentioned: the fact that Zuckerman and SpyFone, represented by counsel, agreed to the terms of the order, presumably after reviewing the FTC's proposed complaint and evaluating the underlying evidence.

The public now has until August 19 to submit comments on Zuckerman’s petition. Will the Commission agree dismissing Zuckerman’s order is necessary to “prioritize fairness and . . . align[] with the Commission’s current enforcement philosophy?” Will this proceeding tell us anything about how the current FTC evaluates consumer harm or what it thinks about mandated information security programs? 

Maybe this is just the beginning of a wave of petitions to reopen settled cases. We'll be watching to see what happens next.

You can read more and see how to submit your comment on the FTC website.