Public Interest, Consumer Groups Back FCC Privacy Proposal
With too little competition among broadband providers, FCC-proposed privacy rules for ISPs are critical to protect consumers, said a Public Knowledge-led coalition in comments posted Tuesday. Comments were due at the FCC Friday (see 1605270057), amid speculation that the final rules will look much like those proposed by the FCC (see 1605270022). “A provider can paint a detailed composite portrait of a user’s life solely from basic header information such as IP addresses, ports, and timing,” PK said in docket 16-106.
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“When data is commodified, this is a very lucrative position to occupy -- and the economic reality of the American broadband market, with its market concentrations that tend toward monopoly, means that there has been zero competition (meaningful or otherwise) on the privacy axis,” the PK-led filing said. “Barring a radical reorganizing of the broadband market as it exists, consumers have no means of exercising control over their information or preventing it from being collected, packaged, and monetized by their broadband providers.”
The PK-led filing said the FCC should not be misled by those who propose the agency follow the FTC model on privacy. The FTC's approach is “rooted in a model that fundamentally assumes a competitive market and robust consumer choice,” the filing said. “Broadband is not, however, a freely competitive market, as the Commission has already found.” The filing cites the FCC 2016 Broadband Progress Report. The Benton Foundation, Consumer Action, Consumer Federation of America and the National Consumers League also signed the filing.
Free Press said it's easy to see the interest consumers have in privacy rules. “Just as telecommunications carriers have no business unreasonably interfering with the transmission of network traffic, they similarly have no business taking advantage of their position as network operators to commercialize without consent their customers’ private information shared over that network,” Free Press said. The National Consumers League also supported the rules.
The American Civil Liberties Union urged the FCC to adopt tough privacy rules. “When an American picks up the phone to call a suicide hotline, an outreach service for gay teens, or a cancer doctor, he or she doesn’t have to worry that the phone company will sell that information to others, thanks to section 222 of the Communications Act, which prohibits such privacy invasions,” the filing said. “There is no reason why that same privacy protection should not apply to the internet.”
Numerous groups, reflecting the free-market orientation of industry, have been equally vehement in opposing the FCC’s approach on privacy.
The NPRM “draws the lines in the wrong places and proposes rules that single out Internet service providers for a unique set of burdensome requirements,” Verizon commented at length. “The Commission’s proposed requirements will harm consumers by creating confusion, promoting insecurity, and depriving customers of the benefits of competition.” The National Association of Manufacturers offered a brief, two-page comment, saying “creating a new and duplicative regulatory regime at a time when a consistent regulatory framework across the entire internet ecosystem is needed will lead to an undue burden on our nation’s telecommunications providers. ... It will take away critical resources that would otherwise be applied to further investment in our nation’s broadband infrastructure on which manufacturers depend to fuel their innovation pipeline.”
The Direct Marketing Association said the FCC doesn’t have the legal authority to impose the rules contemplated by the NPRM. Broadband internet services “were not contemplated at the time of the passage of the Communications Act of 1996, and Commission precedent over the past twenty years confirms the Commission lacks authority to regulate the information collected and used through such services,” DMA said.
The FCC misses the dynamic of the market in its proposed approach to regulating privacy, said the Advanced Communications Law and Policy Institute at New York Law School. ISPs play only “a very small role” in the data market, the institute said. “Because consumers’ online activities increasingly span multiple devices and locations, it is nearly impossible for a single ISP to glean as much information about a particular user’s online behavior as, say, Google,” the filing said. “More and more data that flows over broadband networks is being encrypted, a dynamic that greatly limits the visibility an ISP might have into a customer’s usage data.”
Regulation of internet privacy and data security “are extremely complex and technical issues requiring careful thought and consideration,” said Citizens Against Government Waste. “Unfortunately, the NPRM is exceptionally broad and raises hundreds of questions, making it difficult for stakeholders to provide adequate responses in the short time period allotted for comments and reply comments.”