OTI Defends FCC Proposal to Protect ISP Customers' Data Privacy

Over the past several months, New America’s Open Technology Institute has been part of a campaign that is fighting for the privacy rights of consumers. In March, the Federal Communications Commission’s (FCC) proposed a very strong, pro-consumer rule that would give ISP customers options to control how their ISP uses their data. For instance, the proposal required opt-in consent for most uses and disclosures, meaning you, the customer, would be protected against these practices by default. By contrast, most online privacy protections to date have required merely an opt-out system, allowing companies to collect data with impunity unless the person elects to opt-out.

In May, OTI filed comments supporting the proposal. At the same time, however, ISPs, advertising networks, and other anti-consumer groups filed comments and were not happy. In fact, these companies have responded as if the sky is falling. ISPs and their lobbying associations wasted no time attempting to undermine the FCC’s proposal. They made extensive arguments, with one wireless trade association filing a whopping 200 pages.

Last week, OTI filed comments rebutting these “sky is falling” arguments and supporting the pro-consumer proposal. The thrust of the ISPs’ primary arguments was (1) the FCC lacks authority to enact these proposed rules, and (2) the First Amendment protects an ISP’s right to collect, use, and disclose customer data however it chooses, and the proposal burdens that right.

These arguments don’t hold water. The DC Circuit recently upheld the FCC’s decision to reclassify broadband service as a “telecommunications service,” therefore solidifying that the primary statute at issue in this case, Section 222, applies to broadband providers. The several other broad statutes invoked in this proceeding provide the FCC additional authority to address specific practices such as "pay-for-privacy." The FCC has stayed within the bounds of those statutes in its proposal.

Similarly, the First Amendment arguments are easily countered. There is simply no First Amendment issue with this proposal given how well-crafted the proposed rules are to protecting consumer privacy and giving consumers choices over how their data is used. Evidence shows that Internet users will, among other things, engage in self-censorship and refrain from economic and other expressive activity if they think their data will be used inappropriately or may be subject to a data breach. The FCC is simply protecting users and businesses against such harms and ensuring everyone feels free to make unfettered use of the Internet.

As these rules continue to withstand attacks from opponents, OTI will keep fighting for consumers’ rights. The FCC should enact these rules without delay.