Federal Agencies Squabble Over Privacy Turf

Over the tenure of his administration, President Obama has been promising to reach the remaining few percent of folks that currently don’t have access to broadband Internet. His aptly titled “National Broadband Plan” is slated to cost as much as $350 billion and hasn’t yet provided the service level people expected. As a result the executive agency tasked with this plan, The Federal Communications Commission (FCC), has begun collecting pubic commentary and ideas on how to encourage Internet Service Providers (ISPs) to build out and upgrade rural networks. Of particular interest to the FCC before getting to the nitty-gritty of actually building infrastructure is to start a debate that only political philosophers could truly appreciate. They’re trying to define the exact role of ISPs when it comes to the protection of their subscriber’s privacy.

Consumer privacy in the tech world is occupied territory. The Federal Trade Commission (FTC) has been carving out their niche in this space over the past few years, going after everyone from Snapchat to Yelp to Facebook. Executive overreach has indeed gotten to the point that even George Orwell might have laughed off: two executive bureaucracies have bloated into the same territory, both publishing hundreds of pages of new rules over the top of each other.

So, it wasn’t any real surprise when things came to a head and the sibling rivalry began to take shape. The FTC sent a letter to the FCC last week, trying to define themselves and their space further:

“A broadband provider that makes commitments — either expressly or implicitly — regarding its privacy and security practices, and fails to live up to such commitments, risks violation of Section 5 of the FTC Act. Moreover, even absent such statements, a broadband provider that fails to reasonably protect the privacy or security of consumer data in a way that causes a likelihood of substantial harm that is not reasonably avoidable by consumers and is without countervailing benefits to consumers or competition may violate the unfairness prohibition of Section 5.”

Here the FTC carves out their role as the judge and enforcer of all things digital privacy. But the FCC might not go down without a fight. An obscure rule in an outdated set of regulations state that, whenever a service provider is defined as a “Common Carrier” the FCC has the reins on privacy issues. These common carriers include telephone companies like Verizon and AT&T that often double as ISPs.

Over the past few years, in a completely unrelated political battle, the FCC has been fighting tooth-and-nail to include all ISPs in the cornucopia of common carriers. The reclassification would allow the FCC to have more power to enforce dangerous policies like Network Neutrality and would essentially give the FCC power to determine “fairness” when it comes to Internet service.

The FTC issued something of a Bush-era preemptive strike at this problematic FCC effort. In the same letter to the FCC the FTC argues:

“Broadband Internet access services are not currently offered on a common carrier basis, and the FTC therefore has jurisdiction over such services.”

What might seem like a matter-of-fact legal distinction is actually quite powerful. The memo serves as a tacit approval of the current method of network classification. Better yet, it serves as a clear reminder that, despite the FCC’s urgings, the current system of accountability for ISPs is more than robust enough to maintain privacy and other standards of service.

Consumers should ask that clear lines of distinction are drawn between executive agencies–and that the resulting spheres of power serve consumer needs, not government desires.

Zack Christenson writes on digital tech issues for the American Consumer Institute Center for Citizen Research.

 

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