Document Type

Article

Publication Date

2020

DOI

10.15779/Z38901ZG6Z

Abstract

The federal government restricts what former employees can work on after they leave the government, and for good reason. These post-employment conflict restrictions attempt to address the “revolving door” problem, where employees take information learned from their position in government to unfairly advantage industry. But an unintended consequence of overbroad conflict rules is that they impede well-meaning, former federal employees from providing their knowledge and general expertise to other enforcement agencies with similar missions, such as those at the state level. This is playing out right now with FTC technologists, at a time when the agency—and, indeed, consumer protection agencies more broadly— desperately needs greater technical expertise. Three problems result: (1) former FTC technologists find themselves unable to contribute to the enforcement efforts of other agencies and plaintiffs’ attorneys aligned with the mission of the FTC, (2) some current FTC technologists are unwilling to work on important issues before the agency out of fear that doing so will limit their ability to work on related matters in the future, and (3) would-be technologists may be unwilling to take a position at the agency due to these concerns.

We explore the impact of federal conflict rules on technologists working with the FTC, consider how this impact has changed alongside changing circumstances and enforcement practices, and discuss policy implications. We conclude that unless the FTC reforms the way it administers its conflict rules, it risks losing the assistance of technological expertise— expertise of which it badly needs more, rather than less.

Publication Citation

Berkeley Technology Law Journal, Vol. 35, No. 3, 793-833.

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