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Ex-FTC Chair Recognizes Privacy Problems

WASHINGTON — The former chairman of the Federal Trade Commission under President Obama is among those cautioning the FCC about its framework for new broadband-privacy rules.

In comments on the Federal Communications Commission’s framework, former FTC chairman Jonathan Leibowitz signaled he was on the same page as multichannel video programming distributors, which have pushed the FCC to adopt the FTC’s model of enforcing existing privacy policies, rather than flex its rule-making muscles with new regulations that could create an uneven playing field between ISPs and edge providers.

Leibowitz, now a partner at law firm Davis Polk & Wardell who counsels on privacy and congressional advocacy, said his approach was “not to erect stop lights dictating what companies and consumers can and cannot do, but rather to strike the right balance between privacy and innovation.”

He said he found some things to applaud in the proposal, but signaled the FCC had not gotten the balance quite right.

Leibowitz praised FCC chairman Tom Wheeler for seeking rules that were consistent with the FTC’s “privacy-by-design approach.” The FCC’s design, though, “overshoots the mark,” he said.

The regulations proposed by the FCC for broadband providers “go well beyond those imposed on the rest of the Internet economy,” Leibowitz said.

MVPDs are particularly concerned with the proposal to prevent Internet providers from sharing users’ information with third parties unless they get affirmative, opt-in consent. That’s something edge providers such as Google and Facebook are not required to do.

Such regulations would undercut the consumer benefits the FCC is trying to protect, Leibowitz said.

He recommended the FTC approach of focusing on the type of data being collected, providing heightened protection for the most sensitive information.

Leibowitz also argued, as have ISPs, for a technology neutral approach. He said the government should not pick winners and losers and that browsers, social-media platforms and operating systems have access to “all or nearly all” of a consumer’s online activity.

The FCC does not have authority over edge service providers, Wheeler has contended, though ISPs counter that the FCC has not been otherwise reluctant to use its Section 706 authority to advance communications.