Privacy Experts Disagree Whether FCC Bent on Imposing Privacy Rules
Experts said they question whether the FCC will even consider steering clear of imposing bright-line rules on requirements for ISPs to safeguard subscriber data Friday despite comments on an FCC call with reporters Thursday. Others took the agency at its word and believe it remains open-minded. Chairman Tom Wheeler circulated an NPRM Thursday for a vote at the FCC’s March 31 open meeting (see 1603100019).
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A senior FCC official said on the call the NPRM proposes rules and seeks comment on a wide range of options and third-party proposals (see 1603100037). The FCC is also expected to examine whether to harmonize its customer proprietary network information (CPNI) rules with the privacy rules. The FCC did not comment Friday.
When you go online, the network you use “knows everything about you,” Wheeler said during a CBS This Morning interview broadcast Friday. “They know what sites you’re visiting. They know what kind of emails you’re getting. … They can paint an entire picture of you.” ISPs then sell that information without subscribers’ knowledge, he said. “All we’re saying is, ‘Wait a minute, it’s my information. I ought to have control over whether it gets used or not.’” Wheeler was asked why the FCC is acting now. “Because why not now? I think, is the threshold here,” he said.
Rules the FCC is considering would require that “before a network could use the information they collect on me, that I have to say to them, ‘You can use that information,’” Wheeler said. “It’s that simple.” The FCC is “not going in with heavy-handed regulations that say ‘thou shalt,’” He said. “We’re just saying, ‘Excuse me, the consumer ought to be in control.’”
The Wheeler blog post and fact sheet from Thursday “put forward a mechanistic application of the telco CPNI rules to the Internet and don’t suggest a lot of open-mindedness,” DLA Piper privacy attorney Jim Halpert told us Friday. “But regulating Internet privacy is a new act for the FCC and there is reason to hope that they will be more thoughtful in the final rule.”
If FCC officials are acknowledging they have a lot to learn, why not start with a notice of inquiry, asked a lawyer who represents ISPs. “We've been down this road before -- the fact sheet always suggests a reasonable approach, then the document itself tells an entirely different story.” The FCC should be seeking comment on a variety of solutions, including industry best practices and voluntary commitments, a telecom and privacy lawyer said: “The challenge with relying too heavily on bright-line rules in this space is that the line gets blurry fast.”
Public Knowledge Staff Attorney Meredith Rose said data practices lend themselves to bright-line rules. “But this is still really early in the proceeding,” Rose said. “They don’t have a record developed yet. It is important that they take a lot of perspectives on it.” From a consumer perspective, “we’re really hoping that they do this with a high degree of certainty so that everyone has a clear picture of exactly what’s going on,” she said.
This proceeding is about using existing law to craft new protections for broadband users, said Matt Wood, Free Press policy director. “It was Congress in Section 222 [of the Telecommunications Act] and not the FCC, that guaranteed people these protections against privacy abuses by carriers,” he said. “But while the law is longstanding, how precisely to implement it for broadband Internet access does indeed raise some new questions.”
Wood said he believes the FCC really is open minded and the NPRM is designed to devise good rules. “The principles in play are clear, and the fact sheet released yesterday shows that the chairman has a great grasp of those principles,” he said. “Internet users need strong rules from the FCC, and we hope to obtain them. But there’s still a conversation to be had about what those rules will say and how they’ll say it.”
One should question whether Wheeler’s goal is to “actually protect consumer privacy interests on the Internet,” said Fred Campbell, director of Tech Knowledge. “His plan will ultimately harm consumers, competition and innovation in the market. It will tip the balance by favoring some players in the markets for online advertising and still emerging Internet of Things.” Campbell said Wheeler has made clear it won't address data practices of edge providers. “Consumers’ personal information will continue to be collected and shared by Silicon Valley’s big data companies unabated in enormous quantities,” he said.
The FCC statements and fact sheet are confusing and contradictory, said Roger Entner, analyst at Recon Analytics. “If the FCC's goal is to protect the consumer's privacy by focusing in just one sector, their endeavor is doomed to fail,” he said. “What actual protections do the rules provide? They do not address the reality of 99 percent of data collection and targeted advertising that is actually occurring.” Consumers want and need “consistent privacy rules regardless of who is collecting the data,” Entner said.