Public Interest Groups Ask FCC To Move Forward on Controversial Privacy Rules

A group of some 40 public interest groups is sending a letter to FCC Chairman Tom Wheeler asking the commission to begin a privacy rulemaking. Industry observers said Tuesday that the letter is likely a prelude to an expected FCC NPRM on privacy (see 1601110065).

“The undersigned … privacy and consumer organizations urge you to commence a rulemaking as soon as possible to protect the privacy of broadband consumers,” the letter says. It cites recent comments by FTC Commissioner Julie Brill. The FCC’s reclassification of broadband as a Communications Act Title II common carrier service “adds [the FCC] as ‘a brawnier cop on the beat’ on privacy issues,” the groups said, quoting Brill.

The FCC can play a role in overseeing privacy rules for ISPs, the groups said, noting the FCC and FTC recently signed a memorandum of understanding on consumer protection outlining continuing interagency cooperation on privacy. “Providers of broadband Internet access service, including fixed and mobile telephone, cable, and satellite television providers, have a unique role in the online ecosystem,” the groups said. “Their position as Internet gatekeepers gives them a comprehensive view of consumer behavior and until now privacy protections for consumers using those services have been unclear. Nor is there any way for consumers to avoid data collection by the entities that provide Internet access service.”

The rules the FCC approves should require ISPs to get affirmative consent from consumers for the collection and sharing of their data for any purposes other than providing broadband service, the groups said. The rules should also require the issuance of notices when data is breached “and hold broadband providers accountable for any failure to take suitable precautions to protect personal data collected from users,” the letter said. “In addition, the rules should require broadband providers to clearly disclose their data collection practices to subscribers, and allow subscribers to ascertain to whom their data is disclosed.”

The American Civil Liberties Union, the Benton Foundation, the Center for Democracy & Technology, the Center for Digital Democracy, Consumer Federation of America, Electronic Frontier Foundation, Free Press, the National Association of Consumer Advocates, the Open Technology Institute at New America, Public Citizen, Public Knowledge, U.S. PIRG, the United Church of Christ and the World Privacy Forum were among the groups that signed the letter.

Berin Szoka, president of TechFreedom, said the FCC probably asked for the letter as the commission moves forward on privacy rules. It’s an “open secret” Wheeler’s office asked cities to file petitions seeking redress before the agency acted on municipal broadband last February (see 1502260030), Szoka told us. “They seem to be using the playbook here to stir up outside pressure to ask the agency to so something the chairman wants to do anyway,” he said. “It’s a political game.”

A privacy NPRM seems inevitable in the next few months, said Doug Brake, a policy analyst with the Information Technology and Innovation Foundation. “It’s frustrating to hear the continued reliance on the ‘cop on the beat’ metaphor,” Brake said. “Like Wheeler’s favorite defense of the open Internet order, likening the broad powers the FCC conferred on itself to simply putting a ‘referee on the field,’ these metaphors confuse up-front, precautionary-style rules with an unobjectionable enforcement process. Of course there should be a cop on the beat. The question is what kind of rules that cop should be enforcing.”

Letters like the one from the public interest groups rarely happen by accident, said Roger Entner, analyst at Recon Analytics. “It conveniently gives the FCC further impetus to finalize the privacy rules, when instead we need a broader, more rigorous debate about privacy,” Entner told us. “These type of narrow rules do not protect consumers and are full of unintended consequences. We don't need brawnier cops, we need brainier cops.”

Jeff Chester, executive director of the Center for Digital Democracy, said the letter was the public interest group's idea and wasn't prompted by the FCC.

Fred Campbell, director of the Center for Boundless Innovation in Technology, said the privacy rules are good for edge providers but not for consumers. “This was always part of edge advocates’ Title II end-game,” Campbell said. “Though they once claimed reclassification would provide a more solid legal foundation for net neutrality, that notion was dispelled by the parade of entirely new legal issues debated during oral argument before the [U.S. Court of Appeals for the] D.C. Circuit. Now that the reclassification smoke has cleared, it seems obvious that a prime motive for Title II was to ensure [Communications Act] Section 222 applies to ISPs so it could be used to prevent them from competing against the edge monopolies that control Internet advertising, search, and mobile apps.”

Network architect Richard Bennett said that "the privacy battle pits Internet edge services such as Google and Facebook, which are totally dependent on advertising revenue, against firms with business models that combine subscription fees with advertising, such as the carriers and video streaming services. The Wheeler FCC is on the side of the advertising-based services, as we saw in the open Internet order. So Wheeler’s goal will be to limit the ability of carriers to supplement revenue with advertising and to maintain the status quo for the edge companies.”

There’s little doubt Wheeler won't “let any grass grow under the request for a rulemaking,” said Randolph May, president of the Free State Foundation. “Even without it, it looks like he’s prepared to use the Title II classification of Internet providers to move ahead with new privacy rules. That’s not what I prefer, but that’s the way he’s going.”