FCC Chairman Tom Wheeler told senators at a subcommittee hearing Wednesday that his broadband privacy proposal was an effort to extend traditional network privacy protections to the internet and not a grab of new authority.
Wheeler was one of four witnesses on what Sen. Jeff Flake, (R-Ariz.), chair of the Senate Judiciary Subcommittee on Privacy, Technology and the Law, called the "perfect" panel.
The others were Federal Trade Commission chair Edith Ramirez, senior FCC Republican commissioner Ajit Pai, and FTC Republican commissioner Maureen Ohlhausen. (The story initially suggested the commissioner was exiting,which is not the case.)
Most of the questioning came from Flake and ranking member Sen. Al Franken (D-Minn.).
Flake pointed out the FCC had created the privacy vacuum with its Title II reclassification—the FTC used to have authority over ISPs—and was filling it with static rules for a dynamic ecosystem. By comparison, Franken waxed rhapsodic about the Open Internet order, calling it one of the highlights of his political life—he was a big proponent.
Franken suggested that both the edge and ISPs needed watching on the privacy front but conceded he thought the FCC needed to specifically address broadband privacy with rules.
Franken detoured into a sharp criticism of Pai for suggesting that Wheeler had once said the FCC could not prevent paid prioritization. Wheeler countered that the FCC had prohibited paid prioritization in the Open Internet order.
Sen. Orrin Hatch (R-Utah) made an early exit but before doing so said he had problems with the proposal, as well as with the FCC's Charter/Time Warner Cable conditions. He said he shared commissioner Pai's criticism that they were not deal-specific and were a form of tribute from the companies to earn the FCC's approval.
Hatch also took aim at the FCC's set-top box proposal. He pointed out that the Judiciary Committee has exclusive jurisdiction over intellectual property protection and he was concerned about how the rules would impact legal framework for video content protection, something MVPDs have said they are worried about.
FTC chair Ramirez said the agency was still vetting the FCC proposal and would file comments but did not say she either approved or disapproved of the approach.
She did say she thought the FTC, when it has authority over broadband privacy, had done a good job of protecting it.
Republicans and ISPs say that FTC approach should have been sufficient for the FCC, rather than new rules, which would have made the privacy approach consistent between the edge providers that the FTC has authority over, and the ISP authority it lost to the FCC.
Wheeler made it clear that he saw a difference between edge provider and ISP privacy practices, and not just the fact he says the FCC does not have jurisdiction over the former.
"Most of us understand that the social media we join and the websites we visit collect our personal information, and use it for advertising purposes," Wheeler told the committee in his prepared testimony. "Seldom, however, do we stop to realize that our ISP is also collecting information about us. What’s more, we can choose not to visit a website or not to sign up for a social network, or we can choose to drop one and switch to another in milliseconds. But broadband service is fundamentally different. Once we subscribe to an ISP—for our home or for our smartphone—most of us have little flexibility to change our mind or to do so quickly."
While ISPs argue that the fact that one part of the ecosystem, edge providers, are not subject to the same opt-in requirement is a negative, Wheeler clearly saw it as a selling point. "To be clear, this is not regulating what we often refer to as the edge," he said during his testimony. "It is narrowly focused on the personal information collected by broadband providers as a function of providing you with broadband connectivity, not the privacy practices of the websites and other online services that you choose to visit," he said.
"Again, this is about ISPs and only ISPs," he added in case anyone had missed it the first two times.