With Congress trying to figure out what to do about Facebook, a bunch of civil society groups have banded together to point the way.

Forty-plus groups including the Fight for the Future, the Center for Digital Democracy, National Hispanic Media Coalition and Public Knowledge have launched a new campaign to get Congress and the Biden Administration to crack down on the social media giant in particular, and Big Tech's use of data “surveillance” in general.

That comes in the wake of the whistleblower revelations about Instagram that have prompted bipartisan pushback on the social-media giant and promises of investigations and new privacy legislation, or what more than one legislator called Big Tech's ”Big Tobacco moment.“

Also Read: Rep. Eshoo Pushes for Subpoena of Facebook Documents

The groups want “a full investigation” into Facebook, including subpoenaing documents, a federal data privacy law, and Federal Trade Commission to take enforcement action against surveillance-driven algorithms and data harvesting.

The groups agree that there remains “a fair amount of disagreement,” “both in Congress and among civil society groups,” over how to regulate algorithms, but said there is still a way to get to a federal data-privacy law that could reduce the harms.

A coalition of dozens of groups and academics from around the world are calling on Facebook to scrap plans to launch a version of Instagram for children. Facebook is countering that it continues to explore the option, which it said will be age appropriate and managed by parents. 

The coalition signaled that stance in a letter to Facebook CEO Mark Zuckerberg.

The groups, led by the Campaign for a Commercial-Free Childhood, cited a BuzzFeed report that Facebook plans to build a version of the social media site that "allows people under the age of 13 to safely use Instagram for the first time.”

Also Read: Hill Dems Says Instagram for Kids May Do More Harm Than Good

While they said they agree the current version of the site is not safe for the millions of kids who have lied about their age to create accounts, they argued launching a version for kids is not the right remedy, and would instead put users at "great risk" by "exploiting their fears of missing ou[t] or the desire for peer approval," leading them to constantly check their devices and share photos. "A growing body of research demonstrates that excessive use of digital devices and social media is harmful to adolescents," they write, including contributing to obesity, lower psychological wellbeing, decreased happiness, and decreased quality of sleep. "Instagram’s focus on photo sharing and appearance makes the platform particularly unsuitable for children who are in the midst of crucial stages of developing their sense of self," they said.

Also Read: Hill Continues Big Tech CEO Punishment

Besides, they argued, creating a new site for kids does not eliminate the problem of underagers on the current site. For example, they argued, "children between the ages of 10 and 12 who have existing Instagram accounts are unlikely to migrate to a “babyish” version of the platform after they have experienced the real thing."

Finally, they argued that Facebook has a track record of exploiting young people that makes it particularly unsuitable to be "the custodian of a photo sharing and social messaging site for children."

Among the other groups signing on to the letter are the Center for Digital Democracy, the Consumer Federation of America, the Parents Television and Media Center, Child Online Africa, and Global Action Plan UK.

"We’ve just started exploring a version of Instagram for younger teens," said a Facebook spokesperson. "We agree that any experience we develop must prioritize their safety and privacy, and we will consult with experts in child development, child safety and mental health, and privacy advocates to inform it. In addition, we will not show ads in any Instagram experience we develop for people under the age of 13.”

They also pointed out that "the reality is that kids are online. They want to connect with their family and friends, have fun, and learn, and we want to help them do that in a way that is safe and age-appropriate. We also want to find practical solutions to the ongoing industry problem of kids lying about their age to access apps."

Facebook is working on new age verification methods to get the under-13s off the site while "exploring an Instagram experience for kids that is age-appropriate and managed by parents."

Advocates for a secure and safe online environment for kids have filed a complaint against Google with the Federal Trade Commission seeking an investigation into what they said are app recommendations for kids that don't comply with the Children's Online Privacy Protection Act (COPPA).

Google counters that it makes protection of children a priority.

The complaint was filed by the Campaign for a Commercial-Free Childhood (CCFC) and the Center for Digital Democracy (CDD), which filed a similar complaint two years ago (December 2018) that did not motivate the Donald Trump FTC to action. They are looking for a better result with the Joe Biden FTC and their message is simple: "Google is certifying as safe and appropriate for children apps that violate COPPA and put children at risk."

Also Read: Privacy Advocates Push FTC for Kids Data Collection Transparency, Oversight

They argued that given the increase in kids' screen time during the pandemic, the need for FTC action is even greater.

They conceded Google has made changes since that initial complaint was filed, but said Google had failed to address the core problems, pointing to studies that found that a "significant" number of Google Play apps collected and shared children's personal information without getting parental consent first, a big no-no in COPPA land.

They also said that websites' Sec. 230 immunity from liability over most third-party content would not shield Google from Sec. 5 liability (false and deceptive) because two prongs of the three part Sec. 230 liability shield test would not be met.

While Google may be an interactive computer service (prong one), the second prong is not met because the content at issue is statements made by Google Play in its parent guide and blog, not developed by another content provider. The third prong of the shield would also not apply, they say, because it is Google's speech being held liable, not a third party's.

"While the FTC has brought a few enforcement actions against developers of children’s apps, its whack-a-mole approach cannot fix the systemic problem that Google Play, the largest source of apps for children, misrepresents children’s apps as complying with COPPA when they do not," the complaint alleged. "Thus, it is important that the FTC conduct a thorough review of Google Play’s practices regarding children’s apps."

Also Read: Groups Seeks FTC Investigation of Child-Directed Digital Marketplace

“Parents reasonably expect that Google Play Store apps designated as ‘Teacher approved’ or appropriate for children under age 13 comply with the law protecting children’s privacy. But far too often, that is not the case," said campaign chair Angela Campbell case. "The FTC failed to act when this problem was brought to its attention over two years ago. Because children today are spending even more time using mobile apps, the FTC must hold Google accountable for violating children’s privacy.”

"The Federal Trade Commission must swiftly act to stop Google’s ongoing disregard of the privacy and well-being of children," added Jeff Chester, executive director of CDD.

“Back in 2018, I sounded the alarm and raised concerns about whether the Google Play store is failing to protecting children’s privacy," Sen. Ed Markey (D-Mass.) told Multichannel News. "I’m disturbed, but not surprised, to see new evidence that this is still a problem today."

"Children are spending an unprecedented amount of time on their devices right now, and they shouldn’t be tracked at every turn. I authored the Children’s Online Privacy Protection Act because I believe that kids are a uniquely vulnerable population online. Unfortunately, the threats to kids’ privacy and well-being on the internet have increased by orders of magnitude since that legislation was signed into law decades ago, but violators have far too often been let off the hook. That has to stop. It’s time for Big Tech to be held accountable for prioritizing profits over privacy, particularly when it comes to our children.”

“Google Play is committed to providing a positive and safe environment for children and families," the company said in a statement. "Over the last few years, we’ve taken significant steps including updating our Google Play Families and Designed for Families programs with more stringent requirements around ads, content, and personal data and introducing a Kids tab in Google Play filled with “Teacher-approved” apps to help families find quality apps and games for their kids. We will continue to make the protection of children on our platform a priority.” 

A Google spokesperson said that the company has stringent policies for developers and enforcement, as well as promoting quality content, and has made it easier for parents to supervise their children's use of Google play.

Kids online privacy advocates have told the Federal Trade Commission that it should declare so-called "influencer" advertising unfair and deceptive when it is targeted at kids. 

That came in comments filed with the FTC Tuesday (June 23) by the Center for Digital Democracy and the Campaign for a Commercial Free-Childhood, which has been trying to get the FTC to crack down on such covert advertising practices for years, without success. 

Influencers are people, including kids, who get discounts, or free stuff, or are paid by brands to promote, endorse or demonstrate their products or services online. 

Related: FTC Issues Guidance for Online Brand Influencers 

The groups argue that not only has the FTC not responded to their complaints about the practice when applied to kids, they have not investigated numerous, associated, data collection practices. "[D]ue to the FTC’s inaction, influencer marketing has now become a key strategy used by many brands to reach and engage young people." 

They are giving the FTC some credit for at least asking for input on the propriety of sponsored advertising to children, it is looking for some action.' 

The groups are looking for the FTC to adopt a rule prohibiting use of influencers for marketing to children under age 13.

A pair of powerful Democrats have drafted a bill that would change the face of children's online content/gaming industry. 

The Kids Internet Design and Safety (KIDS) Act, introduced Thursday (March 5) by Sens. Ed Markey (D-Mass.) and Richard Blumenthal (D-Conn.), would, among many other things, ban auto-play settings, push alerts and reward "badges" on websites and/or apps for kids and young teens.

It would also prohibit web sites from recommending content with host-selling and influencer marketing, including "unboxing videos" to kids and young teens, or from "exposing children and young teens to marketing with embedded interactive elements." 

Related: Senators Push for Research into Tech Impact on Kids

“Powerful companies push kids to buy products at every turn online, and top platforms are saturated with disturbing content that no kid should ever be exposed to," said Markey, co-author of the Children’s Online Privacy Protection Act (COPPA). "As a society, we’re playing catch up to the serious risks to kids online, and Congress has a responsibility to say loud and clear that Big Tech needs to get serious about the well-being of children and teens.”

“Big Tech has designed their platforms to ensnare and exploit children for more likes, more views, and more purchases,” said Blumenthal. "The KIDS Act puts guardrails in place to reign in recklessness of marketers and Big Tech – protecting children and giving parents some peace of mind.” 

“This groundbreaking bill will provide children with the 21st Century safeguards they urgently need today,” said Jeffrey Chester, executive director of the Center for Digital Democracy and one of the historically strongest voices for protecting kids online. “Children in the U.S. have been turned into digital “guinea pigs” as marketers and online platforms bombard them with commercial interactive applications designed to unfairly influence their emotions and behaviors. The 'Kids Act' will ensure that young people will be able to grow up in a world where they are no longer exposed to these unaccountable outside forces.”   

Privacy groups have filed a complaint at the Federal Trade Commission against Amazon's Echo Dot Kids Edition alleging its collection and storage of information violates COPPA (the Children’s Online Privacy Protection Act) in at least a couple of ways. 

That is according to a copy of the complaint obtained by Multichannel News. 

The complaint, being filed Thursday (May 9) by the Center for Digital Democracy and the Campaign for a Commercial-Free Childhood (the groups say others will be joining the complaint) comes as the FTC is under pressure to better protect consumers from online data misuse and abuse. 

The groups want the FTC to investigate that allegation and take any necessary action to ensure compliance. 

Told of the planned complaint an Amazon spokesperson said: “FreeTime on Alexa and Echo Dot Kids Edition are compliant with the Children’s Online Privacy Protection Act (COPPA). Customers can find more information on Alexa and overall privacy practices here."

Related: FTC's Simons Says We Are Cop on Privacy Beat 

The Center and CCFC say they have tested the device and found that it retains children's data even after parents believe it has been deleted, that Amazon ignores those requests to delete info or "forget" a child's information, which violates COPPA, they say. In addition, they argue that Amazon's "maze" of multiple privacy policies are confusing and even contradictory, and thus misleading, and thus another COPPA violation. 

The complaint paints a rather frightening picture of the potential privacy implications as children "grow up with the devices. They argue that children could start sharing information with Alexa as they would with a friend, including if they are sad or being bullied at school, information Amazon will record, transcribe, and store in The Cloud "forever."  

“It’s shameful that Amazon is ensnaring children and their valuable data in its race to market dominance,” said Jeff Chester of CDD. "COPPA was enacted to empower parents to have control over their children’s data, but at every turn Echo Dot Kids thwarts parents who want to limit what Amazon knows about their child. The FTC must hold Amazon accountable to make clear that voice-activated, always-on devices must respect children’s privacy." 

The groups say Amazon's "always on" candy-colored listening device is often placed in a child's bedroom, where it encourages kids to interact with it/her (Alexa) as though with a friend and download "skills," which is where the misleading privacy policy allegation comes in. "In clear violation of COPPA, Amazon disavows responsibility for the data collection practices of Alexa skills for kids and tells parents to check the skill developers’ privacy policies. To make matters worse, 85% of skills for kids have no privacy policy posted," they say. 

According to a source familiar with the company's thinking, Amazon asserts that the "skills" do not access or collect personal info, that parents can delete voice recordings in the Alexa app or on the website, that parents have to give their consent before services like FreeTime can be used, and that there are multiple entry points for viewing its privacy policy, including during Echo Dot Kids set-up.

Amazon provided some of that context publicly in a blog post.

Some of the groups were not fans of the device out of the box, having warned parents not to buy it not long after it was introduced last spring. 

They argued then, as now, that it poses "significant threats to a child's wellbeing and privacy." 

Sen. Ed Markey (D-Mass.) and Rep. Joe Barton (R-Tex.), who co-founded the Congressional Privacy Caucus, also pressed Amazon CEO Jeff Bezos at the time for some answers on how the device worked and what steps the company has taken to comply with Children’s Online Privacy and Protection Act privacy protections (a bill Markey motormanned). 

Related: Privacy Groups Push FTC Action on Kid-Connected Devices 

Edge providers are increasingly under the microscope in Washington as their market cap and power have exploded and concerns about how they are using it when it comes to privacy and security and targeted marketing have come to the fore. 

Just this week, FTC Chairman Joseph Simons said that the FTC's high tech task force could go after digital platforms for how they did, or did not, protect online privacy. 

Privacy and civil rights groups want the Congress to keep its hands off state privacy efforts in the search for federal privacy legislation, which has bipartisan support in the broad strokes but remains a challenge in the details.

In a "dear congress" letter, over two dozen privacy and civil rights groups said that while they favor baseline federal privacy legislation, they will oppose any bill that preempts stronger state laws. "Not only will preemption leave consumers with inadequate privacy protections, it will likely result in their being worse off than they would be in the absence of federal legislation."

Among the strong laws they want protected are the California Consumer Privacy Act, the Illinois Biometric Information Privacy Act, the Vermont Data Broker Act, and the veritable host of others that they say "specifically protect the privacy of schoolchildren and prevent the commercial use of their educational information."

As to federal legislation, they said that they are concerned a bill that broadly defines covered entities and allows for preemption could "inadvertently dismantle state civil rights protections and put already marginalized groups in greater danger."

Related: California Slams Privacy Bill

By contrast, big computer companies and edge providers are in general agreement that federal privacy legislation currently being contemplated by the White House and Congress should preempt state efforts to regulate privacy.

"A national privacy framework should be consistent throughout all states, preempting state consumer privacy and data security laws," the Computer & Communications Industry Association (CCIA) has told the Trump Administration, which is also looking to come up with baseline privacy rules of the road.

Groups signing on to the "dear Congress" include Campaign for a Commercial-Free Childhood, Center for Digital Democracy, Center for Media Justice, Color of Change, Common Sense Kids Action, and the Consumer Federation of America.

Armed with a new study on kids and advertising apps, a group of advocates asked the FTC to investigate Android apps targeted to kids five and under, alleging many are unfair and/or deceptive.

The FTC is empowered to punish unfair or deceptive conduct through its Sec. 5 authority.

The groups want the commission to hold app developers to account for those alleged unfair and deceptive practices (disguising ads as being part of a game, for example), including marketing the apps that require in-app purchases as "free" and manipulating children to access advertising.

The study is from the University of Michigan and C.S. Mott Children's Hospital. It looked at 135 kids apps and found various "troubling" practices including ads disguised as game play, 'beloved" characters encouraging kids to make in-app purchases (so-called "host selling).

The study, of family mobile device use, reviewed 39 apps (35 free and 4 paid), and 96 (50 free and 46 paid) of the "most popular apps," which it defined as the apps for ages 5 and under most frequently downloaded from the Google Play store. The majority of the apps had been downloaded at last 10 million times, according to the study.

Related: FTC Allows Online Command Collection Without Parental OK

The study found that 95% of the apps contained at least one type of advertising, much of it embedded in the games in what was described as "manipulative" ways, such as requiring viewing ads to unlock game items or trying to get kids to pay for game items or buy a paid version of the game. 

“This groundbreaking study demonstrates that popular apps for preschoolers are rife with marketing that takes unfair advantage of children’s developmental vulnerabilities,” said CCFC Executive Director Josh Golin in a statement. “Disguising ads as part of game play and using cartoon characters to manipulate children into making in-app purchases is not only unethical, but illegal. We urge the FTC to take swift and decisive action to hold app developers accountable for their unfair and deceptive marketing.”

Why no issues with Apple apps? "The researchers found that most of these apps are available from Apple as well—it was just that their research focused on Google," said a spokesperson for the group. 

Lead groups on the letter were the Campaign for a Commercial-Free Childhood (CCFC) and the Center for Digital Democracy (CDD) (with an assist from the
Communications & Technology Law Clinic in the Institute for Public Representation (“IPR”) at Georgetown University Law Center.

Signing on to the letter were Badass Teachers Association, Centre for Child Honouring, Color of Change, Consumer Action, Consumer Federation of America, Consumer Watchdog, Corporate Accountability, Defending the Early Years, Electronic Privacy Information Center, Media Education Foundation, New Dream, Open MIC (Open Media and Information Companies Initiative), Parent Coalition for Student Privacy, Parents Across America, Parents Television Council, Peace Educators Allied for Children Everywhere (P.E.A.C.E.), Public Citizen, the Story of Stuff, TRUCE (Teachers Resisting Unhealthy Childhood Entertainment), and USPIRG.

Consumer groups including Campaign for a Commercial-Free Childhood and the Center for Digital Democracy are telling the The New York Times that it's time to drop the ads in its New York Times for Kids, calling them deceptive and blurring the line between and paid content. The Times disputes the characterization.

That complaint came in a letter to Times chair Arthur Sulzberger Jr. responding to a Nov. 19 supplement for young readers in which almost a third of the pages (5 of 16) were ads for the Google Home Mini, an internet-connected device they say could "endanger"kids' privacy and welfare.

The groups said the ads were "disguised" as puzzles and so violate the Better Business Bureau's Children's Advertising Review Unit's (CARU) voluntary guidelines, which mandate a "clear distinction" between advertising and content; the groups sent copies of the letter to CARU  and Google.

David Monahan, campaign manager for Campaign for a Commercial-Free Childhood, told Multichannel News that he had contacted CARU Wednesday morning and asked it to investigate.

The groups  noted in the letter that the NYT plans to make the supplement a monthly feature starting in the new year.

The letter's tone was cordial. The groups applauded the idea of a children's supplement, but not as a "Trojan Horse" for Google ads.

"The ads were brightly colorful cartoon drawings, with interwoven questions in bubbles meant to engage children – a visual style quite similar to much of the editorial content of the supplement," the letter noted. "Each ad was disguised as a puzzle for kids, with this question at the bottom referring to Google characters embedded in the ads: 'Can you find the donut, G and Android in each drawing?'"

ATimes spokesperson said: "Advertising helps support our ability to create special sections like this one. In fact, our first special kids section, which published in May 2017, also contained ads. The ads in question met our advertising acceptability standards, and we do not believe there is any confusion that these pages are, in fact, ads."

The groups believe that all marketing directed to children is inherently unfair and that the Google Home product is inherently harmful to children given that Google can share children's infrmation with third parties for the purposes of marketing to kids.

“The Times Company must stop trying to monetize children in order to build new revenues for its brand,” said Jeff Chester, executive director of the Center for Digital Democracy. “It diminishes its reputation by engaging in unprofessional practices towards kids in order to generate sales of ads from Google. The Times is also placing children’s privacy at risk by promoting Google’s vast commercial surveillance apparatus.”

As to the Times' defense.

"It’s disingenuous for the Times to say there’s no confusion about the Google ads which ran in The Times For Kids," said Monahan. "Young kids don’t even understand the persuasive intent of marketing—they are certainly misled when it’s hidden in a cartoon puzzle. Children’s Advertising Review Unit standards ban advertising in a manner that 'blurs the distinction between advertising and program/editorial content in ways that would be misleading to children.'  These Google Home cartoons obliterated that distinction."

Other groups signing on to the letter were Consumer Action, the Consumer Federation of America and Consumer Watchdog.

Child advocacy and privacy groups are calling on the Federal Trade Commission to investigate several smartwatch brands and the risks they pose to children, part of a global effort, they said. They also want them pulled from store shelves.

The groups, which include Consumers Union, Public Citizen and the Center for Digital Democracy, said in a filing with the FTC that the watches, essentially wearable smartphones, have "significant" security flaws and lack privacy protections.

Privacy groups are filing similar complaints in Belgium, Denmark, the Netherlands, Sweden, Germany and the UK.

The research that led to the filings was conducted by the Norwegian Consumer Council, the same group whose investigation prompted a complaint against the Cayla "smart" doll over similar data security concerns.

Related Video: #WatchOut (by the Norwegian Consumer Council)

While the watches are meant to allow parents to keep up with their children, the groups said research has shown that a stranger can "take control of the watch with a few simple steps, allowing them to eavesdrop on conversations the child is having with others, track and communicate with the child, and access stored data about the child’s location."

The groups argued that violates both Sec. 5 prohibitions on false and deceptive practices and the Children's Online Privacy Protection Act.

"The devices create a new vulnerability that allows a third party to find a young child at precisely the time when the child is separated from a parent or guardian," they said.

Related: Markey, Barton Press Mattel on Baby Monitor Privacy

"The Trump Administration and the Congress must bring America’s consumer product safety rules into the 21st century,” said Jeff Chester of the Center for Digital Democracy. “In the rush to make money off of kids’ connected digital devices, manufacturers and retailers are failing to ensure these products are truly safe. In today’s connected world that means protecting the privacy and security of the consumer — especially of children.

"Both the FTC and the CPSC [Consumer Product Safety Commission] must be given the power to regulate the rapidly growing Internet of Things marketplace,” he added. "These devices are supposed to give parents peace of mind and enable secure communications. But some can be hacked; they don’t use encryption, and the 'SOS' function may not work."

Chester was one of the earliest and strongest voices for more child privacy and data protections given the potential of online platforms, and now the growing internet of things, to collect and share information.

The groups gave the FTC credit for having extended privacy protections to children and recognizing the risks of interconnected devices, but said the FTC in the past has also failed to take enforcement action on previous complaints about child safety.

They cited, for example, a 2010 agreement between New York state and a company that stopped selling kids' online conversations to marketers, a complaint consumer groups also lodged with the FTC, which took no action.

WASHINGTON — Broadcasters and multichannel video programming distributors are trying to get more marketing flexibility in a world where online video is on the rise, and where new video competition is not subject to a host of regulations that apply to traditional TV. However, they face pushback from children’s advocates who argue that would be going in the wrong direction.

At the direction of new chairman Ajit Pai, the Federal Communications Commission voted May 18 to launch a review of all its rules and regs applying to media outlets — broadcast, cable and satellite.

That included input from broadcasters and cable operators on its rules mandating weekly quotas of educational kids shows on TV and the longstanding limits on integrating advertising into those shows.

The National Association of Broadcasters, including programmers Disney, CBS, Fox and Univision, sought more “flexibility” in meeting children’s TV requirements. They said imposing children’s-TV programming mandates on broadcast and cable when such content is readily available and not regulated on the internet should be up for reconsideration. They also want the FCC to reconsider the prohibition on including web links in kids’ shows.

Cable and broadcast outlets suggest the FCC get out of the children’s TV ad-limiting business entirely and leave that job to the Federal Trade Commission.

NCTA: The Internet & Television Association also wants the FCC to lighten up on the kids TV ad limits, which apply to cable as well as broadcast.

In response, the Campaign for a Commercial-Free Childhood and Center for Digital Democracy have told the FCC that kids TV rules remain a necessary check on commercialization by big media. They argue that the fact that edge providers can market to kids without consequences is no argument for leveling that playing field.

“The fact that YouTube and other internet and mobile providers ignore child development research and longstanding children’s media principles is no reason for the FCC to weaken important safeguards for the many children who watch programs on cable or broadcast television,” Angela Campbell, counsel for CCFC and CDD, told the FCC.

Pai has not signaled any response at present.

The Center for Digital Democracy has told the European Union it should pull the plug on its Privacy Shield agreement with the U.S. because the U.S. is unable to shield that privacy.

That came in a letter to the EU, which had asked for CDD's input for its first-year review of the shield agreement, which was struck last year.

CDD cited a lack of privacy enforcement or oversight by the FCC and Federal Trade Commission.

It laid out a stark picture: "There is no effective legal framework to protect consumer privacy in the U.S., with inadequate enforcement of the weak policies in place and an overall failure to address the dramatic growth of data practices," CDD said.

The group cited the March 2017 Congressional Review Act nullification of FCC broadband privacy rules as one of the reasons the U.S. can't protect data privacy.

As for the FTC, CDD said that even before the Trump Administration, that commission has been "incapable of effectively addressing how to empower and protect consumer digital privacy."

CDD also says the "notice and choice" framework of the Privacy Shield is ineffective. It said it had studied some of the U.S. companies enrolled in the shield, comparing their statements to their actual data collection and concluded that the self-certification process is "inadequate and dangerous."

The Privacy Shield replaced the safe harbor agreement that a European Union court invalidated in October 2015 over concerns about the U.S. being able to hold up its end of the agreement given the government surveillance revealed by the Edward Snowden leaks.

The framework requires companies to provide notice of what personal information is being collected and stored, the purposes it is used for, and an "opt out" mechanism for not sharing it.

(Photo via Rock Cohen’s Flickr. Image taken on March 18, 2016 and used per Creative Commons 2.0 license. The photo was cropped to fit the 4x3 aspect ratio.)

Get complete coverage of the FCC's set-top proposal.

Public Knowledge, the Center for Digital Democracy and Consumer Watchdog have petitioned the FCC to enforce cable set-top privacy rules against Comcast, AT&T and Cablevision in particular, and the industry more generally, and argue that means mandating an opt-in regime for use of set-top data for marketing purposes.

That comes in a complaint being filed today with the commission, according to a copy provided to Multichannel News.

While the FCC is currently deciding how to apply its MVPD privacy rules to broadband -- including proposing an opt-in regime for some uses -- the groups are suggesting it also needs to apply those rules better to cable ops already under privacy regs. 

They argue that MVPDs are using consumer data for advertising purposes without properly obtaining consumer consent or letting customers know the extent of that information collection. "The Commission should enforce the relevant privacy provisions to ensure that cable operators only use subscriber information when they have the consent required by law," they said. 

They say that cable operators -- they include AT&T and its U-verse video service in that category -- collect and share customer data for targeted ads without sufficient notification to subs. They concede many providers include statements in their privacy policies indicating they use personally identifiable information combined with third-party data for ads, but say those disclosures aren't sufficient to comply with cable privacy rules on set-top info. 

To buttress their case, they cite a June 2015 notice of apparent liability against AT&T Mobility. "The Commission found that when a disclosure deprives consumers of sufficient information to make informed choices and thereby impedes competition in the marketplace, the disclosure is insufficient to cure violations of the Commission’s rules," they said. 

The groups argue that the use of opt-out regimes does not constitute the "prior written or electronic consent" required by the privacy rules, and want the FCC to confirm that.

"[T]the Commission should take the affirmative step of declaring that the use of customer information requires opt-in consent and that absent such consent, cable providers violate privacy rules by collecting customer information and using it to deliver marketing tailored to those customers

The groups want the FCC to address the general practice of cable providers giving advertisers "the ability to easily access and use a customer’s information, without that customer knowing the extent to which that information is being used."

But they targeted their complaint to AT&T, Cablevision, and Comcast, saying they were "among the most egregious" improper users of data. 

“Comcast is committed to the privacy and security of our customers’ personal information," the company said. "This Petition is off base, is misleading on both the facts and the law, and is little more than an attempt to divert attention from a set of flawed proposals that the FCC has put forward on set-top boxes and broadband privacy.  All our privacy practices are fully consistent with the law.  The FCC’s pending proposals on set-top boxes and privacy have drawn widespread criticism and would leave consumers, competition and innovation worse off.”  

Labeling the complaint bogus, AT&T SVP Jim cicconi responded: “AT&T’s use of anonymous and aggregate set-top box information is entirely consistent with the statute. Our disclosures tell our customers exactly how we use that data and provide tools for customers to opt out. Frankly, this complaint is bogus, and seems mainly designed to distract the public from the overwhelming bipartisan opposition to the FCC’s controversial set-top box plan. That plan itself will erode existing consumer privacy protections, not to mention its many other harms. Because the plan’s few remaining supporters have no answer to that charge, they’ve decided to invent a false privacy claim.  This smacks of desperation, and it also carries the whiff of hypocrisy. It’s further proof, if any is needed, that the plan’s supporters have lost the public policy debate on this issue.”

Asked if Public Knowledge wanted the FCC to apply the same opt-in standard for third-parties if they gain access to that set-top-box (STB) info via the FCC's set-top box proposal, SVP Harold Feld said yes. "We want the same standard to apply to all third party set top boxes," he said. "Since that is opt in for cable, it logically follows it would be opt in for any other third party STB -- with regard to the STB data."

"It’s clear that consumer privacy is a meaningless term when it comes to the data practices of multichannel TV phone and cable giants," said Center for Digital Democracy Executive Director Jeff Chester. "They are engaged in a massive exploitation of subscriber data that should really be private. How leading cable and phone companies engage in cross-platform data collection and targeting, with their set-top playing a pivotal role undermining consumer privacy, is reason enough for the FCC to quickly enact chairman [Tom] Wheeler’s ISP proposal."

Not everyone saw it that way.

"Pressing for an opt-in regime is counter to what consumers have come to expect and be comfortable with," says Adonis Hoffman, chairman of Business in the Public Interest and former chief of staff to FCC Commissioner Mignon Clyburn. "Culturally, we have become accustomed to 'opting out' of stuff we don't want.  It is simple; it is easy, and it is ingrained in our digital DNA.  Consumers know how to just say no to the practices and things they do not want--whether it is ads, lists, or solicitations.  And our comfort level has been evolving for years."

Also joining in the complaint and call for action were TURN -- The Utility Reform Network and Consumer Action.

The government should scrap its attempts to get industry to self-regulate data privacy and legislate safeguards.

That was the advice of the Center for Digital Democracy to the National Telecommunications & Information Administration,, which is the White House's chief communications policy advisory body. It joined with the ACLU, the Consumer Federation of America, Common Sense Media and others in calling for strong consumer privacy legislation.

NTIA sought comment on White House reports on "big data," which is the broadband-enabled collection, storage and use of massive amounts of data for commercial use.

CDD says while it appreciates the White House attention to the issue, he says he thinks the White House has "failed to adequately acknowledge the looming threat nearly every American currently faces from today’s pervasive commercial data

collection environment."

The White House has suggested that its consumer privacy bill of rights needs a legislative backstop, but CDD Executive director Jeff Chester says the time to do that is now. The Administration has also been behind the multistakeholder effort to come up with best practices for the individual elements of the privacy bill of rights, app privacy, facial recognition.

Chester, who has been a critic of that process, says it should be replaced by relevant agency rulemakings, including by the Federal Trade Commission, which he says needs to be given rulemaking authority over privacy.

Currently, the FTC can enforce privacy policies, but only if companies have them and don't abide by them, which falls under its enforcement of unfair and deceptive practices.

Chester says legislation should make it clear that businesses should refrain from ubiquitous data collection and profiling, and should concede that self-regulation has failed.

CDD also says the FTC, FCC and other agencies should have to report within six months after legislation is enacted on how Big Data practices can discriminate on the basis of race/ethnicity, sexual origin, income, age, and more.

One of the concerns NTIA has raised is over profiling, where marketers collect data and target ad according to assumptions about the consumer.  Senate Commerce Committee Chairman Jay Rockefeller (D-W. Va.) has also been a big critic of the data broker practice of putting online consumers in categories like "rural and barely making it" and "ethnic second-city

strugglers" for marketing purposes. (http://www.broadcastingcable.com/news/washington/rockefeller-seeks-more-...).