Congress was right to save consumers from privacy rules imposed under net neutrality
© Greg Nash

Consumer privacy has been the biggest loser from net neutrality proponents’ politicization of privacy.

Congress was right to rescind the Title II broadband privacy order passed by the Federal Communications Commission in October. The order took a nonpartisan public policy issue substantively unrelated to net neutrality, consumer privacy, and unnecessarily turning it into a partisan issue.

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Essentially, the House and Senate’s rescissions of the unimplemented rules restored the privacy status quo. It also creates the opportunity to free consumer privacy interests from the unproductive clutches of the Title II net neutrality or nothing, hyper-politicization of communications issues, going forward.

 

It is no coincidence that the biggest edge proponents and funders backing Title II net neutrality – Google, Facebook, Amazon, and Netflix – are also the biggest opponents of consumer-centric, technology-neutral privacy legislation. 

The privacy, safety and security interests of 325 million Americans and their families are vastly more important than the inexplicable supreme importance of monitoring the digital equality of quintillions of inanimate bits of ones and zeros.

As a result of the repeal by Congress, American consumer privacy will return to the Federal Trade Commission’s jurisdiction. That consumer protection agency specializes in consumer privacy protection and has a clear, consistent policy and consumer protection framework.

Going forward, Congress should pass consumer-centric, and technology-neutral, privacy legislation so all Americans can be treated as human beings, customers, and subscribers again, not just as the edge’s “product” that’s sold to advertisers; as the edge’s “users” (the telling offline term for addicts); or as the edge’s “lab rats” that are tracked, tricked, and trained to traverse algorithmic mazes in pre-determined ways.

Edge providers broke privacy many years ago. It was not broken by ISPs that, as converged legacy companies, have always been subject to strict telephone and video privacy rules. That has not been the case for edge providers such as Google, Facebook, Amazon and Netflix.

Two years ago, the FCC under Democratic Chairman Tom Wheeler broke consumer privacy even more, by politically subordinating the nonpartisan issue of consumer privacy to the partisan issue of net neutrality.

When the previous Wheeler FCC decided that its new self-defined mission of net neutrality, was important and urgent enough to implement without Congress, net neutrality morphed into an expedient legal question of what potential FCC legal authority was the most effective means for the FCC alone to mandate maximal net neutrality regulations.

The Wheeler FCC’s decision to reclassify broadband as a Title II utility and impose net neutrality coincidentally brought with the FCC’s pre-Internet telephone privacy rule authority, which is called Section 222.  

Apparently, the Wheeler FCC found Section 222’s privacy of customer’s information to be a convenient political cover and justification for its controversial Title II power grab. Previously, the Obama FCC showed very little interest in changing FCC privacy issues.

That’s where net neutrality began to harm consumer privacy, because it became a political means to another more important political end, no longer an important end in its own right.   

If you don’t think this is true, consider the demonization political tactics and strategy of how the Wheeler-FCC justified both net neutrality and its new broadband privacy rules.

To manufacture net neutrality into a political issue, net neutrality proponents hammered a manufactured public narrative. They said that ISPs, which are paid by users to provide full access to the Internet’s content, somehow would imagine it good business to block or degrade the freedom and quality of the Internet access service they provide their customers.

That narrative defied common sense because that would be contrary to their customers’ best interests and their own self-interest in not angering customers and losing share to competitors. It would also violate the ISPs FTC-enforceable public commitments that they would respect consumers’ freedom to access the legal content, apps, and devices of their choice.

Déjà vu. To manufacture broadband consumer privacy into a political issue, net neutrality proponents are doing it again, hammering a manufactured public narrative that ISPs are the biggest and unique threat to consumer privacy and can’t wait to sell their customers more intimate information to the highest bidder.

Net neutrality proponents know full well that ISPs cannot see most Internet traffic that Google, Facebook and others have encrypted, and that ISPs don’t have the capabilities or core business models to track, analyze, and monetize, private information like Google, Facebook, and other edge platforms do.

And they also know full well that for a consumer to completely leave either Google and Facebook’s networks of sticky content, products, services, and log-in authentications, it would involve dramatically more sacrifice and hassle than leaving an ISP for a competitor.

They know ISPs are not unique from a consumer privacy perspective. They are only unique from the perspective of net neutrality.

Politicizing consumer privacy and subordinating it to net neutrality made consumers the biggest losers. Most consumers care deeply about better protecting their privacy and their family’s privacy, but they have little idea what net neutrality is, let alone how it affects them.

Scott Cleland served as deputy U.S. coordinator for international communications and information policy in the George H. W. Bush administration. He is president of Precursor LLC, an internetization consultancy for Fortune 500 companies, and chairman of NetCompetition, a pro-competition e-forum supported by broadband interests.


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