Stakeholders Go Public With Broadband Privacy Comments

Stakeholders were not keeping their thoughts private on the FCC's politically partisan vote on a Notice of Proposed Rulemaking (NPRM) on new privacy rules for broadband customer information.

"Today’s FCC action unfortunately mistakes a good headline for actual headway in advancing consistent standards of privacy protection and fair competition," said the Natioanal Cable & Telecommunications Association. "Under the FCC's proposal, ISPs would have far more onerous requirements than the ones imposed on other large online entities that have access to a wider range of user information than ISPs.  

"Recently, a cross-section of the broadband industry put forward a technology-neutral privacy framework guided by principles of transparency, data security, and consumer choice. In contrast, today’s FCC proposal will only lead to greater consumer confusion about how their online data is protected, rather than furthering an approach grounded in greater consistency and fairness among all Internet participants.  As broadband providers long committed to protecting the privacy of our customers, we hope that a more considered review of the facts and the potential negative consequences of its proposal will convince the Commission to move in a different direction.”

Comcast Senior EVP David Cohen blogged that the FCC proposal could harm consumers.

"The unfortunate result of the FCC’s extreme regulatory proposals will be more consumer confusion and less competition – and a bunch of collateral damage to innovation and investment along the way," said Cohen. "This is most disappointing because it is entirely avoidable, since the Administration, the Federal Trade Commission, and others have examined this issue and marketplace for many years and have reached very different conclusions."

“The FCC has invented a privacy crisis, then exploited that crisis to claim vast new powers,” said Berin Szoka, President of TechFreedom, calling it a "naked power grab."

"To be sure, privacy is a societal concern, but the FCC's proposal is a solution in search of a problem," said Adonis Hoffman, chairman of Business in the Public Interest and former chief of staff to commissioner Mignon Clyburn, who supported the proposal.

"First of all, the Federal Trade Commission (FTC) should remain the principal privacy enforcer. They have the expertise, institutional knowledge and experiential insight to handle the range of privacy issues sure to arise… The other troubling part of the FCC plan is that it leaves the real privacy perpetrators outside the reach of the rule. Google, which collects and houses more data than all ISPs combined, should be covered, but it is not."

"[The] NPRM misses the elephant in the room and shifts the burden to ISPs who are junior players in the data collection game," said Hoffman. "This is yet another unintended consequence spawned by Title II regulation."

USTelecom president Walter McCormick was equally displeased.

“While we support the effort to ensure strong consumer privacy protections, rules should be consistent across the broadband economy," he said. "Today’s proposal falls short by espousing tentative conclusions that are not in sync with the framework that has applied for years and is incorporated into a proposal presented to the commission by USTelecom and other major trade associations. The FCC’s proposed tentative conclusions, if adopted, will create a morass of regulations in the Internet privacy space and fail to provide a platform allowing consumers to count on privacy rules that are evenly applied across the Internet economy. We urge the commission to take the time to consider the systems at work in the larger Internet ecosystem that have supported so much innovation, and implement rules that are consistent with the Federal Trade Commission’s longstanding and effective approach to privacy that has applied across the Internet, including to broadband providers, for years.”

Larry Irving, former head of the National Telecommunications & Information Administration, saw some issues with the proposal.

"In today’s decision, the FCC starts on a path toward imposing new privacy requirements on broadband Internet Service Providers. At first glance, this rulemaking appears to advance consumer privacy interests on the Internet. Yet, on closer analysis, it may actually lead to greater consumer confusion," he said. "The Commission’s action will require it to create a new set of principles, regulations and interpretations, and will likely lead to increased litigation. It would have been better for the FCC to embrace the FTC’s existing effective and successful unified Internet privacy framework."

"[T]his is just one more instance of the Obama Administration's FCC seemingly relishing the opportunity to impose, without any sound justification, harsher, costlier regulations on Internet service providers than on Internet content providers like Google," said Free State Foundation President Randolph May. "The FCC's imposition of a sweeping opt-in requirement for ISPs that doesn't apply to big Internet content providers distorts competition. And in the end, the likely result of this bureaucratic overreach is that the nation's consumers will be harmed by a reduction in relevant information that will be made available to them."

But there were plaudits as well.

“Broadband service providers occupy a unique position in the Internet ecosystem," said Public Knowledge staff attorney Meredith Rose. "As gatekeepers to the Internet, they have, by their very nature, access to every bit of data that their customers send and receive online. And, as they move aggressively into advertising markets, they have every incentive to exploit their access to this data and remove all consumer agency in determining where and for what purpose their personal data is used. Without clear guidelines on how this data can be used, consumers face a very real threat of having personal data exposed, sold to third parties without their knowledge, or misused in other fashions.

“The FCC has rightly recognized the duty ISPs have to protect their customers’ privacy. The law is clear, and the FCC must adopt the strong protections obligated by Section 222 of the Communications Act.

“Consumers face real privacy harms from their ISPs. Earlier this month, the FCC levied a $1.3 million fine against Verizon over the company’s secret tracking of its customers. Other ISPs have programs that repackage and sell their users’ browsing histories to online marketers, even as most of their customers remain in the dark about what’s being done with their data."

CPNI rule fan Free Press signaled the FCC was going in the right direction.

“The FCC is asking the right questions in its call for comments," said Free Press policy counsel Gaurav Laroia. "An effective framework must consider the issues of pay-for-privacy, deep-packet inspection, upselling services, competition and data security.

“Chairman Wheeler deserves credit for acknowledging the role that ISPs have as the gatekeepers to the Internet. By virtue of their position, ISPs have near-unfettered access to our Internet traffic, allowing them to build comprehensive profiles of their users by surveilling the websites they visit and tracking the services they use online. This is why Congress directed the FCC to take special care in protecting against use of this information without users’ affirmative consent.”

“The FCC plan is consistent with privacy rules that have long applied to phone providers,” said Linda Sherry, director of national priorities for Consumer Action. “Under law, your phone company can’t sell or share information with third parties about your phone activity without your consent. The notice of proposed rulemaking released today would require Internet providers to meet similar consumer privacy standards.”

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.