The FCC Can Still Right the Way Forward on Privacy

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Americans are anxious about their online privacy, according to a survey this year from the Pew Research Center. Only 16 percent of Americans were “very” or “somewhat” confident that their search engine provider would keep their records “private and secure.” Just seven percent had that confidence in online advertisers. Earlier this year, the Federal Communications Commission (FCC) defied common sense and proposed a set of complicated and confusing online privacy rules that would apply narrowly to broadband companies while exempting everyone else. These proposed FCC rules are likely to make both privacy fears and reality worse by confusing consumers and increasing the risk of online data abuse.

Today, the Senate Commerce Committee and House Energy and Commerce Committee convened a hearing on this issue. During the hearing, Committee Chairman John Thune and his colleagues had the opportunity to highlight the FCC’s miscalculation and, more importantly, push the FCC toward uniform rules that consumers can understand and that apply across the entire Internet ecosystem. To understand where this process went off the rails, a good primer can be found in the November 17, 2015 testimony to Congress by FCC Chairman Thomas Wheeler. That day, in a hearing on FCC oversight, Chairman Wheeler spoke of online consumers’ “uniform expectation of privacy.” He downplayed the need to treat “edge” companies such as Facebook, Amazon and Google differently from Internet providers. In fact, Wheeler directly told Congress that the FCC “will not be regulating the edge providers differently” from Internet service providers (ISPs).

Today, we find ourselves faced with Wheeler’s proposal containing an irrational patchwork where requirements on broadband providers are considerably different than on “edge” providers. The FCC’s arbitrary definitions will never be able to keep up with the rapidly changing ecosystem, making it virtually impossible for consumers to reasonably understand multiple rules involving privacy and data use. Civil Rights leaders have warned for years of the risk that “Big Data” algorithms and online profiling could have for communities of color. Lack of uniform privacy standards can lead to discrimination in health, education, employment or other vital aspects of our online lives.

The FCC’s proposed privacy rules focus on Internet service providers even though users are rapidly migrating to encrypted communication, now accounting for 70% of the typical user’s ISP. While unreadable to your ISP, by contrast, Facebook, Google, and Amazon will have free rein to use your data as they are “inside” the encryption wall with no protection for the consumer.

Protecting consumer privacy online is a challenging task under any circumstances. Rather than veer too far down this dangerous, confusing and complex path, the FCC can instead embrace the Federal Trade Commission’s approach that puts consumers in the driver’s seat. Our hope is that the Committee members in today’s hearings did enough to encourage Chairman Wheeler to jettison his unworkable rules and adopt a system in keeping with the FTC’s framework.

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