Leibowitz Doubles Down on FCC Privacy Proposal Criticism

Says it would be 'de facto' rejection of FTC approach

Former Democratic Federal Trade Commission chairman Jon Leibowitz doubled down on criticisms of the FCC's broadband privacy (CPNI) proposal in his prepared testimony for a House Communications Subcommittee hearing June 14 on the proposal, which he said would "create inconsistent standards across the internet, harm and confuse consumers, and undermine innovation."

Leibowitz, who is now co-chair of the ISP-backed 21st Century Privacy Coalition, in comments filed in the proceeding, had advised the FCC to stick with the "privacy by design" approach of the FTC rather than new regulations. He will be preaching to the choir, at least on the Republican side, whose leadership dubbed the hearing: "FCC Overreach: Examining the Proposed Privacy Rules."

Before the FCC reclassified ISPs under Title II, the FTC had oversight of both ISP and edge provider privacy. Now it regulates the edge, while the FCC is asserting authority over ISPs, creating the potential for a bifurcated approach that Leibowitz argues is the wrong one.

In his written testimony for the June 14 hearing, Leibowitz argues that the FCC's proposal amounts to a "de facto" rejection of the FTC's conclusion that ISPs "should not and need not be governed by a different set of standards with regard to how they handle broadband customer data. Instead, the FCC's proposed rules require a broad default opt-in requirement for the use and sharing of customer data [for third-party marketing, for example], with limited exceptions, rather than narrowly tailoring its opt-in to the collection and use of sensitive customer data."

He said the FCC's proposal would apply "onerous privacy and security requirements on a sweeping range of information that is not sensitive."

The FTC, instead, "calibrated" the protection to the level of sensitivity of the information. "The FCC is also much more restrictive with regard to first-party uses of information, which enable companies to improve their service and apprise their customers of offers and products of interest to them," said Leibowitz.

"The FCC’s proposed restrictive choice mandates that selectively target broadband providers prevent consumers from accessing new products and services and provide them no benefits, as well as potentially confuse them.

"They  also, constrain ISPs’ ability to compete with edge providers, and may discourage broadband investment in a manner contrary to the FCC’s mandate to promote such investment," he said.

Leibowitz also suggests the FCC do "stress testing" of various parts of the proposal, as he says the FTC did under his watch when developing its approach to privacy to look for unforeseen consequences.