FCC Prepares to Become the Internet’s Privacy Cop

Internet providers will soon face new rules on how they can handle customer information.

National Journal
May 21, 2015, 1:49 p.m.

The Fed­er­al Com­mu­nic­a­tions Com­mis­sion is warn­ing In­ter­net pro­viders to get in line as it pre­pares to en­force new pri­vacy reg­u­la­tions.

The agency is­sued an “en­force­ment ad­vis­ory” Wed­nes­day, out­lining for the first time how it plans to de­cide wheth­er to crack down on a com­pany for vi­ol­at­ing its cus­tom­ers’ pri­vacy. But the state­ment of­fers few spe­cif­ics, lead­ing crit­ics to warn that the agency is claim­ing ex­pans­ive new reg­u­lat­ory powers.

In­ter­net pro­viders, the FCC said, should take “reas­on­able, good faith steps” to pro­tect cus­tom­er in­form­a­tion. That means that In­ter­net pro­viders should com­ply with their own pri­vacy policies and the “core ten­ets of ba­sic pri­vacy pro­tec­tions,” the agency said, adding that com­pan­ies should reach out to it for ad­vice on wheth­er spe­cif­ic prac­tices would vi­ol­ate the rules.

Ber­in Szoka, the pres­id­ent of the liber­tari­an group Tech­Free­dom, said the FCC’s state­ment “con­firms my worst fears.”

“There are no lim­it­ing prin­ciples on what the agency is do­ing, and they’re go­ing to make it all up as they go,” he said.

But Har­old Feld, the seni­or vice pres­id­ent of Pub­lic Know­ledge, a con­sumer ad­vocacy group, said that, if any­thing, the FCC is try­ing to calm in­dustry fears. “They’re just say­ing, ‘Don’t freak out, make a good faith ef­fort to com­ply with the law, and if you have any ques­tions you can call us,’” he said.

The pri­vacy rules aren’t meant to ap­ply to web­sites such as Face­book and Google. But they will re­strict how In­ter­net pro­viders such as Com­cast, Ve­r­i­zon, and AT&T can handle cus­tom­er in­form­a­tion. Pri­vacy ad­voc­ates worry that In­ter­net pro­viders pose a par­tic­u­larly ser­i­ous threat to pri­vacy be­cause they po­ten­tially have ac­cess to all of the in­form­a­tion that flows over their net­works, and it’s dif­fi­cult for cus­tom­ers to switch to com­pet­it­ors.

The FCC plans to im­ple­ment the pri­vacy pro­tec­tions as part of its net neut­ral­ity reg­u­la­tions, which are set to go in­to ef­fect June 12.

In or­der to en­act net neut­ral­ity rules that it be­lieved could hold up in court, the FCC ex­pan­ded its power over In­ter­net ser­vice by clas­si­fy­ing it un­der the same reg­u­lat­ory re­gime as land­line tele­phones.

That clas­si­fic­a­tion comes with dozens of reg­u­la­tions that have little to do with net neut­ral­ity. While the FCC waived most of those re­quire­ments for In­ter­net pro­viders, one sec­tion that will ap­ply is the agency’s pri­vacy pro­tec­tions.

The FCC already has de­tailed pri­vacy rules for phone com­pan­ies, but much of the ref­er­ences to phone num­bers and call re­cords would make little sense in the In­ter­net realm. So FCC Chair­man Tom Wheel­er has said he wants to is­sue new rules to cla­ri­fy ex­actly what pri­vacy ob­lig­a­tions In­ter­net pro­viders have. But it could take months or years for the FCC to write those new rules.

The agency said this week’s en­force­ment ad­vis­ory is meant to out­line how the FCC plans to handle the is­sue un­til it can write those de­tailed rules.

But Szoka ques­tioned wheth­er that day will ever come. “They do not want to do a rule­mak­ing,” he said. “They want to re­tain as much flex­ib­il­ity as they can without ty­ing them­selves down in de­tails that can be chal­lenged in court.”

He pre­dicted that the agency will start by tak­ing up non-con­tro­ver­sial cases, but will gradu­ally ex­pand its power over In­ter­net pri­vacy. It may even­tu­ally even try to go after Web com­pan­ies in ad­di­tion to In­ter­net pro­viders, he said.

“This is not Jade Helm 15,” Feld countered, re­fer­ring to planned mil­it­ary train­ing ex­er­cises that have sparked con­spir­acy the­or­ies of a gov­ern­ment takeover. “Only in the fevered ima­gin­a­tions of the para­noid could this state­ment “¦ trans­late in­to a secret plan to reg­u­late Google and Face­book.”

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