Ethics FAQs for FTC technologists

The Federal Trade Commission is aggressively hiring Technologists to help drive the agency’s work, ensure a vibrant technology marketplace, conduct investigations, and hold companies and people who violate the law accountable. If you’re a technology researcher, engineer, UX designer, content strategist, or product manager and are thinking about joining us in this new approach to our work, you may have some questions about working for the federal government. Today we’re sharing answers to some frequently asked questions from our applicants about working at the FTC and the rules technologists must follow after federal service.

We recognize this does not address every factual situation or cover all nuances. If you have questions specific to your circumstances, you are strongly encouraged to seek guidance from FTC ethics. Please reach out to Craig Bannon (cbannon@ftc.gov) or Jeremy Wong (jwong2@ftc.gov).

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1) Q: If I work on an FTC investigation or litigation matter, how will that affect my ability to work for non-federal entities?

A: Federal ethics restrictions affect your ability to participate in certain matters, but they do not restrict your ability to work for particular companies or on specific issues. Federal ethics restrictions do not bar you from working in the private sector generally, even for companies involved in the matter, regardless of whether the company was the defendant, an information provider, or otherwise involved.

Restrictions primarily depend on whether and how the work you intend to do for a non-federal entity relates to an FTC matter in which you participated, had official responsibility, or were exposed to nonpublic information.[1] For example, you could work on privacy as an issue at ABC Company, or build privacy-protective products. However, for example, if you are asked to assist ABC Company with an FTC investigation, litigation, or compliance issue that was pending, or directly resulted from a matter that was pending, when you worked at the FTC, then you would need to get review and approval from FTC ethics.

Many technologists in the private sector do not directly assist non-federal entities with FTC matters. Additionally, many technologists do not directly assist non-federal entities with specific party matters in which the United States is a party or has a direct and substantial interest. However, you may be prohibited if you intend to work on the “same” matter you handled for the FTC. Therefore, you must consider whether there is significant overlap in terms of the parties, allegations, and confidential information.

2) Q: During my FTC tenure, I worked on an FTC investigation and/or 6b study involving ABC Company as a target. Am I able to work for ABC Company as long as I do not work on that same matter?

A: Yes. The ethics rules generally do not prohibit you from accepting employment with any specific employer after federal service. So, you can work for ABC Company as long as the position does not require you to participate in a particular matter with which you would have a conflict (e.g., an investigation that you worked on at the FTC).

3) Q: If I leave the FTC and work at a company under investigation by the FTC, am I restricted on what I can work on at that company?

A: No, for most former employees. If, during your FTC service, you provided substantive input into an investigation or you were exposed to nonpublic information that could give you a present, unfair advantage, then you would be prohibited from participating (even behind-the-scenes) in that FTC investigation. However, you could still work on other matters (including FTC matters) for the company, subject to any other applicable post-government employment rules.[2]

Notably, the FTC’s clearance rule’s (16 CFR 4.1(b)) prohibition against participating behind-the-scenes in an FTC matter has broader implications when the matter results in a broad compliance order (e.g., FTC privacy orders). For instance, behind-the-scenes drafting of a routine compliance report or otherwise advising ABC Company on how to demonstrate its compliance with the FTC’s order would be prohibited. However, maintaining ABC Company’s privacy or data security program generally (e.g., suggesting and/or implementing changes as appropriate or writing new code) does not, by itself, necessarily constitute prohibited behind-the-scenes assistance. This is true even if ABC Company later decides to use the former FTC employee’s work-product in a submission to the FTC, and such work would not require a clearance request.

4) Q: What post-employment restrictions apply to me as an FTC technologist?

A: The same as any other discipline (lawyer, economist, etc). For example, all current and former federal employees must not use or disclose any confidential or nonpublic information obtained in the course of their FTC duties, unless authorized.

Like all former executive branch employees, a criminal statute will prohibit you from communicating to or appearing before the U.S. Government (USG) on behalf of others in connection with any specific party matter if you participated personally and substantially in that same matter and if the USG is a party or has a direct and substantial interest.[3] Political appointees, supervisors, and persons designated as “senior” for federal ethics purposes have additional restrictions.

All former FTC employees must obtain clearance from the FTC before they participate, even behind-the-scenes, in any FTC matter that was pending, or directly resulted from a matter that was pending, at the agency while they worked at the FTC.[4] Clearance will be denied if, in the course of your FTC duties, you participated personally and substantially in the same matter. Separately, even if you did not work on the matter, clearance would be denied if you were exposed to nonpublic information that could give you an unfair advantage at the time you are requesting clearance.[5] For example, if you received a memo on the FTC’s legal theories in the matter, then clearance would be denied regardless of whether you worked on that matter.

For example, if you worked on the FTC’s antitrust investigation of ABC Company and you later work at ABC Company, you would be barred from working on the “same matter” but NOT prohibited from working on the following:

• Generally applicable data privacy, data security, software updates or other IT programs that apply to the company more broadly; or
• The company’s response or advocacy to the FTC related to an investigation (e.g., a data privacy investigation) that is different than the antitrust investigation on which you worked.

The above restrictions are the most common post-government employment conflict issues, but there are some additional restrictions that may or may not affect you.[6]

5) Q: Would I need clearance to work on remediating every security incident for any firm under FTC order?

A: No.  If a firm simply asks you to remediate a security issue, without providing you with any other context, then clearance would not be necessary.  However, if a firm asks you to prepare materials or testimony or perform any other tasks to help the firm demonstrate to the FTC that it is in compliance with an FTC order that was pending, or directly resulted from a matter that was pending, when you worked at the FTC, then you would need to get clearance.