Brian Weiss

Seeking a Review of Broadband Privacy Rules

Today, USTelecom formally asked the Federal Communications Commission (FCC) to reconsider privacy rules on internet service providers narrowly adopted in November by a divided commission.

USTelecom believes the rules establish a confusing and conflicting regime over one segment of the internet ecosystem. The petition asks the commission to modify the rules and accompanying regulations to avoid conflict with existing privacy and data security frameworks enforced by the Federal Trade Commission (FTC) and reflect cost-benefit considerations.

As long as the FCC classifies broadband internet access as a “common carrier service,” it should ensure technological neutrality to avoid consumer confusion and harmonize its rules with those used by the FTC, which enforces privacy rules on Internet companies, the petition said.

The FCC failed to consider any cost-benefit analysis when adopting its new privacy rules, and treated “even the most ephemeral privacy interest as though it had infinite weight and simply disregard[ed] the economic costs of foreclosing productive uses of information,” USTelecom noted in its petition.

The FCC subjected ISPs to a “burdensome opt-in regime for marketing uses of all web-browsing information on the theory that all such information is equally ‘sensitive.’” By contrast, the FTC recognizes that not all data is sensitive.  By rejecting a contextual approach to rulemaking, the FCC ignored the “substantial economic costs of overbroad opt-in requirements,” the petition said.

The agency also erred in adopting rules that assume ISPs are “nearly omniscient and have greater visibility into consumer data” than other Internet companies, such as social media networks and search engines. ISPs have less knowledge of users internet habits than some internet companies thanks to the increased use of encryption as well as the number of internet connections used by consumers each day. Consequently, ISPs have “less visibility than leading social media platforms, search engines, and data brokers,” about consumers’ internet usage, USTelecom notes.

The FCC should align its notice-and-choice rules with the FTC’s privacy regime. Any ISP privacy rules should distinguish between sensitive and non-sensitive web-browsing and app-usage data and should confine opt-in consent requirements to genuinely sensitive data, USTelecom said. The agency should also eliminate notice-and-choice obstacles for companies trying to use customer data for internal analytics and service improvements.