In Wyndham, the FTC won a battle but perhaps lost its data security war

Gus Hurwitz has a slightly different take on the Third Circuit’s opinion in FTC v. Wyndham. On the issue of notice, he writes, in part:

The court goes on to find that Wyndham had sufficient notice of the requirements of Section 5 under the standard that applies to judicial interpretations of statutes. And it expressly notes that, should the district court decide that the higher standard applies – that is, if the court agrees to apply the general law of data security that the FTC has tried to develop in recent years – the court will need to reevaluate whether the FTC’s rules meet Constitutional muster. That review would be subject to the tougher standard applied to agency interpretations of statutes.

Should this happen – should the FTC convince the district court that its prior cases are relevant – the Third Circuit’s opinion bears ill portents for the Commission.