ISPs Seek Changes to Privacy Rules on Web Browsing, Application History

Lawyers who represent ISPs said Friday a loss on browser and app history would be a major blow for their clients’ ability to use data they collect and put ISPs at a disadvantage relative to edge providers like Google, Amazon and Facebook. The lawyers said if the FCC is to change its approach on web browsing and application use history, the push would have to come from Rosenworcel. One lawyer said Rosenworcel now plays the same swing role at the FCC that Justice Anthony Kennedy had played on the Supreme Court when the court still had nine members.

Rosenworcel has offered little indication she will push for major changes to the draft, said advocates on both sides of the issue. A lawyer who represents ISPs said one hopeful sign is that Google urged the FCC to move closer to the FTC framework (see 1610040080), which doesn't have the same restrictions on browser and app history.

Wheeler in reality didn't propose rules that bring the FCC that much closer to the FTC on privacy, said former House Communications Chairman Rick Boucher, D-Va., in an interview Friday. Requiring opt-in consent for app usage and web browsing history would “choke off” the ability of ISPs to use key data even in first-party transactions, Boucher said. Most of the data used for internet marketing comes from app and web browsing history, Boucher said. "That's how the preference profiles are constructed; it's based on just those histories," he said.

Edge providers already are "collecting data based on app usage, based on browsing history in some cases, and they’re monetizing that very effectively and that’s part of what keeps e-commerce as readily available as it is and keeps so much content affordable and in many cases even free for internet users,” Boucher said. “It’s definitely not the ISPs that are collecting and monetizing the most consumer information.” Boucher said as a consumer he finds that the way companies are using data is useful. “I really like getting what I get from Amazon.com,” he said. It’s making recommendations "for items that are very relevant to me.” Boucher does work for ISPs on privacy. “My advice to the FCC is sit back and think this through,” he said. “It’s better to harmonize the privacy protections across the entire internet ecosystem, maintain the ecommerce that flows so freely today."

ISPs “continue to push for a race to the bottom” on privacy rules, said Dallas Harris, policy fellow at Public Knowledge. “The FCC has come a long way from its original proposal to make the rules more closely reflect the FTC's approach, but ISPs won’t be happy unless the FCC mimics the FTC's approach verbatim,” Harris said. “The only significant differences between the FTC's approach and the proposal outlined in the FCC's fact sheet is the inclusion of web browsing and app usage history. Where you go and what you do online can reveal extremely sensitive information such as race and sexual orientation. For consumers to truly be in control of their information, web browsing and app usage history must remain sensitive.”

A former FCC spectrum official said Rosenworcel, with her nomination for another term to the FCC still before the Senate, may be reluctant to take too strong a stance. “She’s in a difficult situation,” the former official said. “No matter what she does, someone will be angry.”

How the votes will shake out is still a bit up in the air, said Doug Brake, telecom policy analyst at the Information Technology and Innovation Foundation. “One has to assume that votes on the big-ticket items inevitably start blending together, so it's hard to say where things shake out,” he said. But Rosenworcel has “rightly recognized that big data can do a whole lot of good, and outlined a number of reasons justifying her support for harmonization” between Section 222 of the Communications Act and other federal privacy policies, he said. “The fact sheet Chairman Wheeler put out very clearly falls short of that harmonization.”

​“Since Tom Wheeler has chosen to behave more like an advocate than a diplomat in his role as FCC chairman, the diplomatic task of evaluating alternatives and forging durable compromises has fallen on Commissioner Rosenworcel,” said Richard Bennett, free market blogger and network architect. “By all appearances she’s doing an excellent job of steering the commission toward the vibrant and sensible center that has guided its work for decades.” The next president would do well to consider Rosenworcel as potential chairwoman, Bennett said.

Rosenworcel is likely to provide the key vote, agreed Randolph May, president of the Free State Foundation. "I have commended her for what I understand to be the constructive role she has played in the navigation device proceeding," May said of Rosenworcel. "I’d certainly like to see her play a constructive role in the privacy proceeding as well. That means holding fast until her colleagues agree to scale back meaningfully the overreach in the latest proposal that would encompass web browsing and app usage history." May said that in raising concerns about the FCC rules "Google is beginning to realize that those who ride on the back of tigers often end up inside. If so, and if Google influences Commissioner Rosenworcel to cut back on the overreach, then good for Google and bad for tigers.”

Steve Berry, president of the Competitive Carriers Association, said he hopes Rosenworcel will push the order in the right direction. “CCA has impressed upon all commissioners the importance of ensuring the FCC’s privacy rules are consistent with the FTC’s regime,” Berry emailed. “To do otherwise would deny competitive carriers a material competitive ability in the Internet environment, against both dominant carriers and edge providers. These edge providers, many of whom have gone on record supporting consistency with the FTC regime, have great ability and incentive to strategically utilize consumer data to improve and market their products.” The draft rules “will be very difficult for consumers to know and difficult to tailor once adopted, not to mention costly for everyone,” he said.

Meanwhile, various public interest groups said in a filing at the FCC the agency shouldn’t “yield to calls from CTIA, TechFreedom, T-Mobile, AT&T and others to severely limit the scope of covered ‘sensitive’ information, nor otherwise weaken the privacy proposal as outlined in the fact sheet.” The rules are critical to the future of the internet, the groups said. Title II of the Communications Act gives the FCC authority and a responsibility to structure rules that go beyond the FTC framework, said the filing in docket 16-106.

“We want people to get connected, and we want them to use the internet without fear that the things they do and say online will be shared, sold, and exploited without their knowledge or otherwise used against them. In no event should people have to choose between protecting privacy and getting online,” the groups said. The filing was signed by the American Civil Liberties Union, the Benton Foundation, the Center for Democracy & Technology, the Center for Digital Democracy, Color of Change, Consumer Action, Consumer Federation of America, the Electronic Frontier Foundation, Free Press, New America’s Open Technology Institute and Public Knowledge.

​Other groups also made closing arguments, with a vote slated for Thursday (see 1610200044). CTIA said President Meredith Baker spoke by phone with all five commissioners. Baker “emphasized the importance of harmonization of privacy policy across the Internet ecosystem” and the “strength of the three-prong test developed by” the FTC, a filing said. “The Commission should make clear in any new rules that such rules would apply to ISPs only in their capacity as providers of broadband access and connectivity to the Web, but not as providers of Web-based or ‘edge services’ from their Websites, apps, social media sites, and other Internet-based platforms,” said NCTA in a filing.