A bombshell in the broadband privacy debate

The unique American right to privacy – the Constitutional right to be “secure in their persons, houses, papers, and effects” birthed as a direct response to the British crown’s unfettered “general warrant” rights to search colonial homes is so fundamental today that nary a politician will seek to question it.  The same can be said for our First Amendment’s freedom of speech and the Fifth Amendment’s guarantee of equal protection.

This is what makes so amazing how the FCC might be thumbing its nose at all three core principles in its latest “privacy rulemaking.”  And the noting of this came in a major broadside delivered by the most revered constitutional scholar of the day – Harvard Law School’s Laurence Tribe.

{mosads}In a major speech before the Media Institute, Tribe says that the effort by the FCC to strictly regulate some Internet companies’ privacy practices and not others is an affront – one that will not survive constitutional scrutiny.  A patchwork of stricter rules for network providers than for Internet “edge” companies will create an incomprehensible mess of privacy confusion for consumers while shamelessly discriminating, without any justification, between internet companies when it comes the use of data.  

Tribe finds this approach so odious that he hardly minces words.

[T]he FCC’s proposed rules almost certainly could not survive any meaningful degree of First Amendment scrutiny . . . .  By essentially blocking broadband provider entry into the online advertising market and singling out new entrants in the online advertising space for regulatory obstacles more stringent than those applicable to the established market leaders – market leaders whose threat to privacy concerns is obviously no less than what is posed by the new kids on the block – the FCC’s proposal is exposed as an Emperor Who Has No Clothes. It’s a nakedly anti-consumer measure, rather than a pro-privacy measure, and it can’t survive First Amendment scrutiny.

The rules are a bad idea – as dozens of experts, academics, former government officials, and even other Obama Administrations have told the FCC.  But for Tribe, the problem’s even worse. The proposal is an attack on our most basic First Amendment and Equal Protection principles and is clearly unconstitutional.  That puts the FCC in a very difficult position – it is one thing to adopt bad policy, but another to knowingly enact unconstitutional rules.

As Professor Tribe explains:

I must speak out whenever I conclude that the freedoms of expression are genuinely compromised . . . .   That’s really why I briefed and argued a case that won in the Tenth Circuit against the FCC in 1999. In a case called “US West v FCC”, I persuaded the U.S. Court of Appeals to throw out privacy rules that had been adopted by the FCC . . . .

It was very similar really to the rules involved here. . . .

Now the newly proposed privacy rules for broadband internet providers are at least as clearly unconstitutional. They’re just a re-incarnation on steroids of the regulations that the Tenth Circuit held invalid.

Tribe argues that these rules run afoul of years of Supreme Court precedent holding that speech cannot be subjected to “opt in” rules that let listeners shut down debate before it even gets started.  If the government forces speakers to get consent before speaking, it undermines public discussion and allows dangerous inertia to shape our discourse:

For many decades, really almost for eighty years, the Court has been sensitive to the psychological and economic realities of inertia. It has invariably recognized the virtues of a regulatory regime in which the fall-back presumption or baseline, if you will, is the presumption that one is permitted to engage in speech and in the processing of information that goes into speech, unless someone with a protected stake in that information, a privacy stake or a proprietary stake, says no – rather than the other way around — rather than a prohibition against speech and information processing unless a protected individual says yes. . . .

Efforts to solicit opt-ins from one’s potential audience are often not worth the cost. Doing so for the small percentage of likely affirmative responses will simply be too expensive to be worthwhile. The result will be artificial inefficiencies introduced into the flow of truthful and valuable information, and thus an unnecessary blockage to the free flow of that information. And that’s exactly the result the FCC rule I’ve been discussing would inevitably yield.  

The (now digital) filing cabinets of our executive branch agencies overflow with filings and comments and position papers on every issue under the sun.  But some views and perspectives rise above the ordinary back and forth.  That is the case with Professor Tribe’s determination that the FCC’s proposed broadband privacy rules are unconstitutional – an analysis that demands the FCC return to first principles and craft new rules that respect our basic constitutional guarantees.

Balto is an antitrust attorney based in Washington D.C. specializing in consumer protection, intellectual property, and health care. He previously served as Policy Director at the Federal Trade Commission and as an attorney in the Justice Department’s antitrust division.

The views expressed by authors are their own and not the views of The Hill.


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