FCC chairman Ajit Pai and FTC chairman Maureen Ohlhausen took to The Washington Post late Tuesday to defend the rollback of the FCC's broadband privacy regs, which Congress did last week through a Congressional Review Act resolution and President Donald Trump made official with the stroke of a pen earlier this week.
In a co-bylined op ed, they said "professional lobbyists" had lit a wildfire of misinformation that they wanted to quell with "what's really going on." They said the Chicken Little warnings made no sense but what did was restoring broadband privacy oversight to the FTC. That could happen either by removing the FTC exemption from regulating common carriers or reclassifying ISPs so they are not considered common carriers under Title II or by doing both.
Pai has long argued that Title II reclassification of ISPs under the Open Internet order, which is how the FCC deeded itself broadband privacy oversight, was a mistake in need of correcting.
They said that despite "hyperventilating headlines," ISPs have never planned to sell browsing histories to third parties—something ISPs were saying this week and have pledged not to do in voluntary privacy principles.
Pai and Ohlhausen also pledged to come up with a new system for protecting consumer privacy.
They took aim at the FCC approach, which required ISPs to get permission to share web and app and geolocation data with third parties while edge providers—under the FTC's privacy-by-design regulatory approach—did not have to get that permission, as well as the argument that disparate treatment was justified due to ISPs unique gatekeeper status or the lack of competition for service.
"If two online companies have access to the same data about your Internet usage, why should the federal government give one company greater leeway to use it than the other," they wrote.
As for the differential treatment. "As Peter Swire, President Bill Clinton’s chief counselor for privacy and President Barack Obama’s special assistant for economic policy, explained in a paper he co-wrote for Georgia Tech’s Institute for Information Security and Privacy, 'ISPs have neither comprehensive nor unique access to information about users’ online activity. Rather, the most commercially valuable information about online users . . . is coming from other contexts,' such as social-media interactions and search terms," they said. That would be the Googles and Facebooks of the world, the edge providers who don't need opt-in permission.
As for lack of competition, they argue that does not hold up, either.
"As a result, it shouldn’t come as a surprise that Congress decided to disapprove the FCC’s unbalanced rules," they said.
"The American people deserve a comprehensive framework that will protect their privacy throughout the Internet. And that’s why we’ll be working together to restore the FTC’s authority to police ISPs’ privacy practices," they concluded.