New FCC boss Ajit Pai, apparently taking a break from paying empty lip service to the poor, has quietly announced the FCC will be killing consumer broadband privacy protections before they even have a chance to take root. Hoping the news would get lost in the pre-weekend hustle, the FCC quietly circulated an e-mail on Friday stating that the agency would be moving to kill the rules before they arrive March 2, just as large ISPs had demanded.
The FCC statement starts by implying that eliminating FCC oversight of broadband privacy (leaving the FTC as the lone cop on the beat) is more consistent and efficient:
“Chairman Pai believes that the best way to protect the online privacy of American consumers is through a comprehensive and uniform regulatory framework. All actors in the online space should be subject to the same rules, and the federal government shouldn’t favor one set of companies over another. Therefore, he has advocated returning to a technology-neutral privacy framework for the online world and harmonizing the FCC’s privacy rules for broadband providers with the FTC’s standards for others in the digital economy. Unfortunately, one of the previous administration’s privacy rules that is scheduled to take effect on March 2 is not consistent with the FTC’s privacy standards. Therefore, Chairman Pai is seeking to act on a request to stay this rule before it takes effect on March 2.”
This idea that the FTC should be the only regulator overseeing ISP privacy comes from the telecom industry itself, which has repeatedly tried to claim it’s unfair to “burden” ISPs (many of which are trying to get into the ad and media industry) with FCC regulations not faced by the likes of Google and Facebook. The problem: they’re ignoring the fact that while users can switch search engines or services if they’re unhappy with Google or Facebook’s privacy practices, a lack of competition often means users have no such luxury when it comes to broadband ISPs. Thus, specific rules large ISPs pretend they don’t see the reasoning for.
Meanwhile, the big push to have the FTC alone oversee broadband privacy is rooted in the knowledge that the FTC is (a) overworked and underfunded, and (b) has no rule-making authority. Now ex-FCC boss Tom Wheeler had this to say about this GOP and Trump FCC “modernization” effort in a recent, candid interview:
“It’s a fraud. The FTC doesn’t have rule-making authority. They’ve got enforcement authority and their enforcement authority is whether or not something is unfair or deceptive. And the FTC has to worry about everything from computer chips to bleach labeling. Of course, carriers want [telecom issues] to get lost in that morass. This was the strategy all along.
So it doesn’t surprise me that the Trump transition team — who were with the American Enterprise Institute and basically longtime supporters of this concept — comes in and says, “Oh, we oughta do away with this.” It makes no sense to get rid of an expert agency and to throw these issues to an agency with no rule-making power that has to compete with everything else that’s going on in the economy, and can only deal with unfair or deceptive practices.”
In other words, the pretense for Pai and friends is “efficiency,” when the reality, as has long been the FCC’s overarching MO, is to protect large ISPs like Comcast, Verizon and AT&T from real accountability and oversight. That’s a problem when it comes to an uncompetitive industry where the nation’s biggest carriers have no organic checks and balances on their increasingly unethical privacy practices. You need either real competition or reasonable regulators, and as these ISPs’ historical behavior makes clear, you run into problems when revolving-door regulators want neither.
The FCC rules themselves were passed last year and are relatively simple; ISPs must disclose what data they’re gathering and who they’re selling it to. In a few instances, users need to opt in if ISPs want to share more personal financial data. The telecom and ad industries whined about the rules, but the FCC only acted to create the rules after Verizon was caught covertly modifying user packets in order to track user behavior (without informing them or providing working opt-out tools), and AT&T and Comcast began making it clear they wanted to charge users a premium for privacy.
The telecom industry had its chance to self-regulate on the privacy front, and showed repeatedly it wasn’t capable of actually doing so. Repeal the FCC’s privacy rules, and there’s literally nothing standing between you and Comcast when it comes to privacy except an overworked (and likely to be similarly and intentionally hamstrung) FTC incapable of picking up the slack. That’s certainly great for Comcast. It’s less great if you’re a broadband consumer actually looking to have some amount of control over how your personal data is collected and shared in the gigabit era.