Georgetown University Law Professor Paul Ohm came strongly to the FCC's defense in testimony for a June 14 House Communications Subcommittee hearing on the FCC's proposed broadband privacy (CPNI) framework.
The hearing was labeled "FCC Overreach: Examining the Proposed Privacy Rules," so it was clear what the Republican majority that called the hearing thought of the proposal, which, among other things, is to require opt-in subscriber permission to share customer data, a requirement not put on edge providers who also share data.
But Ohm said the FCC had acted "appropriately and wisely" to apply sector-specific rules to ISPs.
A divided FCC voted March 31 to propose the new privacy regime but has not voted on a final order.
Ohm's principal arguments for that FCC approach were that 1) ISPs are "important gatekeepers of privacy;" 2) that Congress recognized the need for "sectoral" privacy rules and that the FCC is "well-advised to create rules that draw bright and easily administrable lines rather than utilize murky balancing tests, in order to protect consumer expectations and engender consumer trust;" and 3) the proposed rules do preserve a level playing field and ISPs "retain the ability to compete directly with search engines and other providers of edge services subject to precisely the same privacy law framework as any other company."
He does concede that there is a need to toughen privacy rules for actors other than ISPs but suggests the answer is to give the FTC more authority, not tailor the FCC approach to the FTC's current ability only to enforce violations of voluntary privacy policies or otherwise go after conduct that is unfair or deceptive.
The Federal Trade Commission used to oversee broadband privacy, using its enforcement power to go after false and deceptive practices to make sure privacy policies were adhered to. The FCC, which inherited oversight when it reclassified internet access as a telecom service subject to common carrier regs, is taking a different approach, proposing rules that require users to opt in to having their customer information shared with third party marketers.
FCC chairman Tom Wheeler has said the different approaches to edge and ISP privacy are appropriate because consumers can far more easily switch from one search engine or site to another, but cannot do so with ISPs, which lack the same ease of switching or competitive choices.