Bridge Span 16-4: FCC Power Grab – The End of Privacy?

This morning the Senate Commerce Committee will hold one of its occasional hearings as part of its Federal Communications Commission oversight responsibility. All five FCC commissioners will be attending so that the Committee can hear any varying perspectives about policy issues before the Commission. In the words of Senator Thune, Chairman of the Committee, “With the FCC considering significant new rules affecting consumer privacy, cable service through set-top boxes, and other issues impacting our economy, effective collaboration and informed decision making at the commission couldn’t be more important. This hearing presents an opportunity to discuss concerns about partisanship affecting commission work and to raise issues on important policy questions under consideration this fall.” We should all hope that the Chairman does intend to raise questions and bring close scrutiny to the answers.
One issue that warrants a thorough examination and a real exercise of oversight is the FCC proposal to make greatly more complicated and less successful the consumer privacy rules that those who fall under FCC jurisdiction must follow. Earlier this year, the FCC proposed a new, additional regulatory apparatus, asserting, without any factual support, that the Commission could create better rules for internet service providers (ISPs).   The FCC alleges that they, rather than the FTC, are the agency that can create the perfect system for protecting consumer privacy, but what has been proposed is merely discriminatory and unhelpful to consumers. The reality is that the Commission has no expertise in such matters and instead is merely bootstrapping itself to make another power grab. In doing so it is ignoring the best interests of the American people, and instead has focused solely on how the Commission can expand further its ever expanding power regardless of Congressional intent.
But consumer privacy has not been ignored by government as the Federal Trade Commission has exercised oversight of the internet ecosystem, including websites and internet service providers. The agency has been focused on deceptive and unfair practices and on how data have been collected and used. Under this comprehensive FTC approach there have been very few ISP-related privacy or data security issues.
As MANA National President Amy Hinojosa recently wrote in The Huffington Post:
The FTC is the lead federal consumer protection agency and has been a strong cop on the beat for our privacy. But in a classic case of the ‘law of unintended consequences,’ the FTC had the jurisdictional rug pulled from under its feet for a small portion of the internet-broadband providers-due to legal changes contained in the Open Internet rules passed last year.
As a result, the FCC-which regulates telecommunications-is now eager to put their footprint in this space by knitting a­ patchwork set of rules that would apply narrowly to broadband companies while exempting everyone else. In fact, the rules under consideration at the FCC would be a huge step backwards for consumers-confusing consumers and increasing the risk of abusive or discriminatory use of our data online.
Instead of an inconsistent patchwork based on false assumptions and a misreading of the privacy threat, the FCC can and should step back and put consumers ahead of this jurisdictional land grab and learn from the success of the FTC approach that puts consumers in the driver’s seat rather than in a maze.
The FTC, the government expert agency in privacy, itself took an opportunity to express many concerns about the proposed scheme and pointed to its own approach as the correct answer. The FTC suggested that “the FCC consider the FTC’s longstanding approach, which calls for the level of choice to be tied to the sensitivity of data [e.g., financial, health, children’s information].” This rather than treating various parts of the same internet ecosystem differently, complicating a consumer’s understanding of what information is protected at what time and where. Or as FTC Commissioner Maureen Ohlhausen stated, “the differences between the FTC’s approach and the proposed FCC approach . . . may not best serve consumers’ interests.”
There are any number of other details that raise very troubling questions about how an FCC scheme would conflict with the FTC approach. But to even raising those details misses the real point – we have now moved beyond big government to a place where agencies want to expand to be their own big governments. It is regulatory hubris at the least and a disaster for real consumer protection at the worst. The desires of an agency to grow should always be checked by the harm such growth would wreak havoc upon all U.S citizens especially when it involves their most intimate, private data.   Let us all hope that the U.S. Senate Commerce Committee hearing today begins to turn the tide of regulatory expansionism.

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