Technology Policy Institute: FCC Should Reconsider Unbalanced Privacy Regime

Questions wisdom of applying stricter rules on ISPs
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As the May 26 initial comment deadline approaches on the FCC's broadband privacy proposal, the FCC's docket has begun to fill with commenters asking why ISPs should be subject to more stringent privacy standards than others in the virtuous circle.

That was the thrust of comments from the Technology Policy Institute (TPI) to the FCC.

The FCC is proposing to require ISPs, like AT&T, to get affirmative permission from every sub before they share data with third parties. Edge providers are under no such requirement and FCC chairman Tom Wheeler has repeatedly said the FCC isn't authorized to regulate edge privacy.

And there's the rub for TPI and others.

"The Federal Communications Commission has not demonstrated why internet service providers should operate under a stricter privacy regime than other firms that use consumer data for commercial purposes," TPI said.

Search and social media platforms are subject to Federal Trade Commission enforcement of their voluntary privacy policies, as were ISPs before the FCC reclassified them as common carriers.

TPI says the FCC has not even asked whether the privacy rules it is proposing for ISPs are a net gain over the FTC model—of enforcing violations of voluntary privacy policies on a case by case basis under its unfair and deceptive practices authority.

It also says the FCC has not supported its claim that ISPs have access to more, and more sensitive data, than edge providers.

Then there are the practical, business concerns—as in money. "Treating ISPs differently from edge companies would put ISPs at a competitive disadvantage in the large and growing digital advertising market, which had revenues of approximately $60 billion in 2015," TPI said.

Given all that, TPI is asking the FCC to reconsider the costs of its proposal and whether consumers are better off under those or the FTC model that applies to the rest of the Internet.

Wheeler has said that he is open to comments but has also signaled the regime he has proposed is the best way for the FCC, under the authority he says it has, to protect consumer privacy online. The FCC has also agreed to work in tandem with the FTC on privacy enforcement.