FTC's Brill Welcomes FCC to Privacy Beat, but Industry Worried About Consistency
FTC Commissioner Julie Brill said she disagrees the agency has been “dramatically shoved aside” with the FCC’s adoption of the open Internet order to halt ISPs from blocking or degrading site services. “It’s important to note how limited the real world impact of this restriction of the FTC’s jurisdiction will be,” she said Thursday at a Georgetown University Law School’s Center on Privacy and Technology event on both agencies enforcing privacy regulations. But Jeff Brueggeman, AT&T vice president-global public policy, said on a later panel the industry is concerned about potential inconsistent enforcement actions by the two agencies.
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While the open Internet order moves the FTC out of enforcement in a “narrow but significant band of commercial activity on the Internet,” Brill said, it only affects ISPs in their capacity as common carriers: “Consumer privacy enforcement continues to present a target-rich environment.” She said the FTC will remain the nation’s leading consumer protection and privacy agency, with authority over apps, edge services, ad networks, advertisers, publishers, data brokers, analytics firms and others. The agencies released a memorandum of understanding Monday (see 1511170038) formalizing coordination between them.
Brill said she supported the FCC action for two reasons: It makes the FCC a “brawnier cop on the privacy beat,” and it presents a “rare opportunity” to discuss privacy in the context of the consumer-broadband provider relationship. She said consumer privacy protection is necessary because both ISPs and broadband providers increasingly collect vast amounts of data on their customers to build detailed profiles on them. She also said personal data disclosure and data security are important issues.
While industry would like coordination between the FTC and FCC on privacy enforcement, Brueggeman told us the “concern is that because you’re under different regulatory silos, you could get different results.” He said the FCC’s proceeding on how it will regulate privacy for ISPs will be crucial. “So our message is if you kind of regulate us consistently with how we were regulated under the FTC … then it may not be that much of a problem. But if you kind of go back to the [customer proprietary network information] rules, which were much different, then you’ll create diametrically opposed regimes.”
But he said FCC officials have been open-minded and are taking the time to understand this before starting the rulemaking proceeding: “I think that’s a good sign that they are listening and trying to get informed before they do something.”
Brueggeman said during the panel discussion that he respectfully disagreed with Brill’s description that all Internet data is collected and maintained by a user’s ISP. He said a smartphone has data on a user’s browsing habits, calls and other information that an ISP doesn’t have. He said that data can be used by apps and websites and shared with third parties. “And therefore I think the danger of a dual regime is that you won’t have a holistic view of consumer privacy,” he said, emphasizing the need for consistency between the two agencies in regulating this area.
But Laura Moy, senior policy counsel with the New America Foundation’s Open Technology Institute, disagreed. “Although there are other providers in the ecosystem who have access to a lot of information on consumers, the fact of the matter is that ISPs -- as operators of the gate through which all of the information flows from the consumer to every service that the consumer interacts with -- [are] uniquely situated to have comprehensive access to a lot of information across a lot of different services to each consumer that it provides service to.” She said consumers often have few broadband Internet access providers to choose from in an area so they are “forced to provide lots of personal information with their ISP.”