David Goldman, chief telecom counsel for the House Energy & Commerce Committee Democrats, says his boss--ranking member Frank Pallone (D-N.J.), is all for harmonizing the FCC's and FTC's online privacy authority, but that means the FCC should proceed with its vote on strong new broadband privacy rules and Congress should give the FTC rulemaking authority so it can impose similarly strong rules on edge provider collection and sharing of data.
Goldman was speaking at a TechFreedom-CALinnovates event on the Hill Monday (Oct. 24).
The FCC assumed authority over ISP broadband privacy oversight when it reclassified ISPs as common carriers. The FTC, which had overseen ISPs, but is prevented from doing so due to a common carrier exception, still oversees edge provider--Google, Facebook--data collection and sharing, though a recent court case has called even that into question in some instances.
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Pallone has been pushing the FCC to vote the rules amid ISP pushback and arguments the FCC should either not do so, or put its most recent version out for further comment.
That last point was made in a panel session after the speech by TechFreedom President Berin Szóka, who said they were, to a degree "operating in ignorance" when talking about a proposal whose details they have not seen. FCC Chairman Tom Wheeler did put out a fact sheet on the changes to his proposal, but did not seek public comment on it.
Most of the panelists argued that the FCC proposal should not have defined a broad category of web browsing and app use history as sensitive information requiring opt-in approval, as was the case with Szóka, CALinnovates senior policy fellow Tim Sparapani, James Cooper of George Mason University, and Christin McMelely of Davis Wright Tremaine.
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Marc Rotenberg, president of the Electronic Privacy Information Center, said his problem was that the regs were not strong enough.
Most of the panelists said the FCC should harmonize its approach with the FTC's by enforcing voluntary guidelines rather than new rules that would create a disparate regulatory regime between the FCC and FTC. But Rotenberg said the FCC should proceed with the rules, agreeing with Goldman that the FTC should do the harmonizing with that tougher FTC regime--if Congress gives it the authority.
Rotenberg said one reason he did not think the FTC approach worked--it has limited rulemaking authority and essentially sues or secures consent decrees for unfair or deceptive practices to enforce voluntary privacy policies--was that the FCC did not enforce the actions it did take. He said if the FTC did so, maybe there would be some argument for "harmonizing" the FCC with that regime.
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Cooper said that he was all for privacy protections, but did not think the FCC approach was the way to go. He pointed out that if AT&T buys Time Warner, or Verizon's purchase of Yahoo! and the Huffington Post means that data is coming in from different places with different privacy regimes and that nothing the FCC is doing resolves that.
Szóka said that even people, like him, who would like to see the FCC phased out, recognize it has to do something now that it has created the regulatory vacuum by reclassifying ISPs--something else Szóka takes issue with. He suggests using its consumer protection authority to take a case-by-case approach where it finds problems.
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McMelely agreed that the FCC did not need to come up with new rules, and that the suggestion that it needed to come up with a broadband version of the CPNI rules it applies to traditional cable service "isn't true."
