Tech industry groups fire salvo in FCC privacy fight

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Some of Washington’s most prominent tech and telecommunications trade groups want to dissuade the chairman of the Federal Communications Commission from significantly changing the way data privacy issues are regulated for Internet service providers.

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The groups argue in a Thursday letter to FCC Chairman Tom Wheeler that any new privacy regime for Internet providers stemming from last year’s net neutrality rules should reflect the way the Federal Trade Commission currently handles privacy concerns.

The FCC changed the way Internet service providers are classified under the law when it adopted new net neutrality rules a year ago. Because of that shift, the providers are now subject to privacy requirements under the federal Communications Act that are grounded in the same part of the law as regulations currently governing traditional phone companies. The commission agreed not to apply the rules for telephone companies to broadband services, but pledged to develop rules especially for Internet providers.

The net neutrality rules are still being reviewed by a federal court. But speculation has already begun about Wheeler’s plans to develop rules for the way Internet providers treat consumer data. That item is likely to set off a battle between industry and privacy advocates, and Thursday’s letter is an opening salvo from the groups, which want the FCC to replicate the standards already applied to companies by the FTC.

“If the courts determine that the FCC has authority to regulate broadband privacy, we encourage you to develop a framework that offers consumers robust privacy protection, while at the same time allowing broadband providers to continue to innovate and compete,” they said in the letter.

“We recommend that any FCC framework be consistent with the successful FTC approach, which is grounded on prohibiting unfairness and deception.”

The seven signatories to the letter — CTIA, USTelecom, the Consumer Technology Association, the National Cable and Telecommunications Association, the American Cable Association, the Competitive Carrier Association and the Internet Commerce Coalition — are trade groups that represent a wide range of companies, from cable providers like Comcast to wireless providers like AT&T, with a stake in the broadband business.

They say in the letter that keeping an FCC proposal consistent with the FTC’s standards “will continue to provide Internet service providers with the flexibility to update their practices in ways that meet the evolving privacy and data security needs of their customers and ensure they can provide their customers new products and customized services.”

“Rules dictating specific methods quickly become out of date and out of step with constantly changing technology, and will only hamper innovation and harm consumers."

They argue that having similar regulations for Internet providers, which are governed under the new rules by the FCC, and other tech companies that answer to the FTC, would prevent consumers from having to deal with a complex system involving two regulators.

It would also conceivably help the Internet providers to dodge a bullet. The FCC could implement stricter privacy rules than the FTC, potentially putting the Internet providers at risk of facing harsh enforcement actions.

That possibility has even been acknowledged by one of the FTC’s members. Democratic Commissioner Julie Brill said she welcomed the FCC as a “brawnier cop on the privacy beat” in a speech about the net neutrality rules in November.

Privacy groups hope that the commission will embrace that role. Fifty-nine advocacy organizations said earlier this month that the FCC should “move forward as quickly as possible on a Notice of Proposed Rulemaking proposing strong rules to protect consumers from having their personal data collected and shared by their broadband provider without affirmative consent, or for purposes other than providing broadband Internet access service.”

Advocates on both sides of the debate are waiting to see when Wheeler will choose to take on the issue.

 

“Chairman Wheeler is eager to hear from all stakeholders on the right path forward for ensuring consumer privacy on broadband networks," said Kim Hart, an FCC spokesperson, in an email.

The FCC was originally scheduled to take up privacy last year, but the chairman never circulated a policy proposal to his colleagues. They are not scheduled to weigh new privacy rules for Internet providers at their February open meeting, but the commissioners could conceivably start the process of establishing new regulations as soon as March.