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Free State: FCC Should Scrap Broadband Privacy Order

The Free State Foundation, a free market think tank focused on communications and content rights issues, has told the FCC it needs to scrap its new privacy rules for ISP data collection and sharing—or at least amend them to square with the Federal Trade Commission's approach to regulating edge provider collection and sharing. 

That came in comments in opposition from ISPs, advertisers and others, who asked the FCC to reconsider the new broadband privacy framework adopted by a Democratic-led FCC back in October over the dissents of both Republicans, which includes current FCC chair Ajit Pai. 

In its comments, Free State said the framework was both beyond the FCC's legal authority and arbitrary.

"The Commission's imposition of intrusive privacy rules on ISPs – but not on non-ISPs that also collect personal information and data, and much more of it – is contrary to the principle that laws should be applied equally to all, absent compelling reasons to the contrary," it said.

The FCC rules require opt-in consent from consumers for collecting and sharing a broad category of "personally sensitive" information, including app use and web surfing histories, neither of which are opt-in for edge providers under FTC oversight. 

"By requiring ISPs to create an 'opt in' policy regarding the collection of 'any information that is linked or linkable to an individual,' the commission's privacy rules unfairly disadvantage ISPs by requiring them to obtain consent for access to data that non-ISPs presently collect without needing such consent," said Free State.

The FCC did not rule out so-called "pay for privacy" approaches in which ISPs offer added value for sharing info, the FCC did say it would look at them on a case-by-case basis. 

But Free State sees that as potentially chilling such offerings given the lack of specificity of what the FCC will be judging.

"The Commission's reservation of case-by-case review authority over so-called 'pay for privacy' offerings such as discounts for use of personally identifiable information also will discourage ISPs from offering consumers targeted marketing deals or selling advertisements personally targeted to match consumer expectations," it said. 

Pai, with the help of fellow dissenter, Republican Michael O'Rielly, has already stayed enforcement of the data security portion of the rules, and has signaled he wants to review or roll back the rest.

In the meantime, congressional Republicans could vote soon on invalidating the October rule vote using the Congressional Review Act.