Undoing the Privacy Rule Mess

May 18, 2017

The Federal Communications Commission (FCC) today began the initial steps in reversing its Obama-era rules on net neutrality. In an open commission meeting, it adopted a Notice of Proposed Rulemaking (NPRM) that proposes reversing its Open Internet order imposed on broadband providers. These rules provided the basis for the FCC to pass a further sweeping rule regarding broadband privacy. This approach to broadband privacy regulation, as ANA has been stating for many months, was entirely inconsistent with prior privacy regulation in this country. In short, the broadband privacy rules were not based on the sensitivity of the data involved but rather solely on who collects it.

ANA consistently opposed the privacy rule because under its provisions most internet browsing and app data were to be considered sensitive and opt-in consent would be required from consumers. Consequently, it would have been very difficult for broadband providers to deliver advertising that is relevant to consumers. We advised against adoption of the rule because (among other things) it usurped the traditional role of the Federal Trade Commission (FTC) as the nation’s chief privacy overseer and undermined the FTC’s opt-out approach that has been in effect for many years. We also pointed out that the rule ignored efforts by industry, including by the Digital Advertising Alliance’s (DAA) self-regulatory program that empowers consumers to determine whether their online activities would be collected and used for advertising purposes, as well as commitments by broadband providers such as Verizon and AT&T not to sell individual consumer information.

Fortunately, Congress used the Congressional Review Act to invalidate the broadband privacy rule. Now, the FCC has begun a process to undo the underlying regulations that created this mess. Approval of the NPRM would mean that broadband providers would be once again regulated by the FTC – just as it regulates internet edge providers and application service providers. In this way, the FTC’s privacy regime would be reinstated. 

Congress also could intervene again and pass legislation fixing the net neutrality rules to assure that the FTC would have the responsibility and authority to oversee privacy regulation for ISP’s and other internet companies. Restoring the FTC to its traditional and highly-respected privacy enforcement role will continue to be a major goal of ANA. We will follow this rulemaking proceeding carefully, in order to do all that we can to ensure that advertisers’ and consumers’ interests are preserved.

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