The FCC will hold its open meeting this Thursday (March 31st) where it will vote on the Notice of Proposed Rulemaking (NPRM) on broadband privacy currently being circulated to the full Commission. This rulemaking will seek to clarify the privacy obligations of ISPs under Title II. Chairman Wheeler released a fact sheet on the NPRM earlier this month. Assuming the NPRM is adopted by the full Commission, it will be released for a period of public comment in the upcoming weeks.
A critical consideration for the rules is what type of customer approval should be required for use, disclosure, and access to customer information collected by ISPs. The Chairman’s position appears to be that customer opt-in should generally be required for use and sharing of customer data for marketing products and services unrelated to the service a customer has purchased. Customer opt-out would be sufficient for use and sharing of data for marketing “communications-related services,” and no customer consent would be required when data is being used to provide broadband services or market a type of service already bought by the customer. It should be noted that the Chairman’s fact sheet does not address other issues such as “paying for privacy” and deep packet inspection. A number of other groups have weighed in on why such practices are particularly problematic for broadband customers’ privacy.
Meaningful consumer controls must be a component of the proposed rules.
The Chairman is right to give special attention to customer choice for this rulemaking. Meaningful consumer controls must be a component of the proposed rules. For one, the Commission has a statutory obligation to require customer approval for use of customer data for certain marketing: Section 222 of Title II requires carriers to obtain customer approval for most uses and disclosure of customer data unrelated to the provision of the carrier’s service. Furthermore, there are strong policy reasons for requiring customer approval – and particularly customer opt-in – for using data to market non communications-related services. ISPs have access to large amounts of detailed and very sensitive data on individuals that may be used to market products and services customers find irrelevant to their original reason for interacting with that business. Customers should have a say in whether these types of secondary data uses are appropriate. This builds consumer trust and makes the data exchange process more fair.
Building consumer controls into company policies, regulations, and laws, as well as educating consumers on how to use these controls is critical to preserving the Internet’s ability to benefit all its users. Studies have shown that over half of Americans do not want to lose control of their data online but believe such loss is an inevitable consequence of Internet use. These findings are especially concerning when we consider the disproportionate negative impact data collection and use can have on historically disadvantaged communities. The White House has noted that using data to facilitate “‘perfect personalization’ . . . leaves room for subtle and not-so-subtle forms of discrimination in pricing, services, and opportunities.” CDT and 23 other organizations submitted a letter to Chairman Wheeler recently calling on the Commission to integrate certain civil rights principles in its broadband privacy rules to address these types of concerns.
The FCC has a statutory obligation and specialized expertise to protect the privacy of broadband customers
Of course these concerns aren’t limited to ISP data use; a large portion of edge services’ profits come from data monetization. However, Title II and the larger patchwork of US privacy laws cannot (and are not intended to) set standards for every industry. This is why we need baseline US privacy legislation. Nevertheless, absent Congressional action to pass such a law, the FCC has a statutory obligation and specialized expertise to protect the privacy of broadband customers now through its Title II authority. We hope the Commission will fully embrace this opportunity.