When the Federal Communications Commission (FCC) proposed to give consumers real choice about how their internet service providers (ISPs) could use the data they collect from those consumers, opponents viciously attacked the proposal.

{mosads}The Federal Trade Commission (FTC) — the agency most active on consumer privacy issues at the federal level — recently weighed in on the FCC’s proposal in 36 pages of comments from the agency’s Bureau of Consumer Protections. These comments clearly signal support for the broadband privacy proposal. However, industry opponents have tried to spin these comments to suggest that the FTC does not support the FCC’s proposal and thus, industry argues, the approach is inferior and should be scrapped for an FTC-like approach.

This argument mischaracterizes the FTC’s comments. Indeed, rather than admonishing the FCC for being too pro-privacy and pro-consumer, the FTC in many instances suggests the FCC does not go far enough. Moreover, the Ninth Circuit Court of Appeals recently ruled the FTC has no authority to police unfair and deceptive practices of any company with the “status” of common carrier, making the FCC’s privacy rule-making even more important in ensuring that broadband users have robust privacy protections.

The FTC argues it is “not optimal” that baseline privacy obligations don’t apply across the board

Opponents of the FCC’s broadband privacy proposal have long argued that the FCC should decline to protect consumers from privacy-invasive ISPs if it can’t also protect consumers from every other privacy-invasive company that operates online. They appear to argue that unless the FCC can protect consumers against every online privacy practice, it may as well not even try to protect it at all.

In making this argument, these opponents have insistently latched onto the FTC’s use of two words, “not optimal,” to support their claim that the FTC agrees with them. In its comments, the FTC stated that the FCC’s proposal places burdens on ISPs and not on “other services that collect and use significant amounts of consumer data. This outcome is not optimal.” These words have been treated by industry as some kind of smoking gun.

But far from being a smoking gun, this portion of the FTC’s comments, taken in context, actually indicates the opposite of what industry would like us to believe — that, rather than thinking the FCC should dial back proposed consumer privacy protections, FTC staff members believe stronger consumer privacy protections are needed across the board.

In the very same paragraph, the FTC writes that it “has repeatedly called for Congress to pass additional laws to strengthen the privacy and security protections provided by all companies” including “baseline privacy” laws. Thus, the phrase “not optimal” is not used to signal the FTC’s lack of support for the proposal. Quite the contrary. The phrase is used to say that the differential treatment is “not optimal” because there are not baseline privacy laws that apply to all online content companies in the same way that the FCC’s rules would apply to broadband providers.

The FTC’s comments merely suggest changes to the FCC’s proposal that would give consumers more choice, control and information about their privacy, not less

Jon Leibowitz, who formerly chaired the FTC and now represents industry clients in this proceeding, has argued before Congress that the FTC disagreed with the FCC’s proposal 28 times. Others have also pointed to the FTC’s supposed disagreement with the FCC. But an actual review of the FTC’s comments shows that the FTC supports the FCC going further in protecting consumers.

Consider, for example, the FCC’s proposal on privacy policies. The FCC proposes to require that broadband providers disclose several types of information so consumers can make an informed decision, and to require notices be “clear and conspicuous,” “comprehensible” and “legible.” The FTC’s comments agree with the categories of information to be disclosed, but propose that the FCC go further by taking “additional steps to encourage [broadband] providers to make privacy notices clearer, shorter, and more standardized than they currently are.”

Further, the FCC proposes that broadband providers give consumers notice in advance of material changes to privacy policies. “But,” the FTC notes, it “does not require the [broadband] provider to obtain affirmative express consent before making changes that apply to previously collected consumer information.” Retroactive changes, the FTC says, should require opt-in consent.

The FTC also takes issue with how the FCC proposed that ISPs display the opt-in/opt-out choice mechanism to consumers. In the proposal, the FCC indicates the choice should be made clear and prominent, and not buried in lengthy documents. The FTC urges the FCC to go further, arguing “the FCC [should] require the [broadband] provider to provide a short and clear explanation of the choice, accompanied by equally prominent ‘yes’ and ‘no’ buttons or checkboxes, on a separate page, outside of” a privacy policy or similar document. The FTC also supports the FCC’s proposed “privacy dashboard” that would give consumers a one-stop-shop for their ISP privacy settings.

With respect to data breaches, the FTC also calls on the FCC to go further. First, the FTC suggests the FCC should require Broadband Internet Access Service (BIAS) providers to develop written comprehensive information security plans. Second, the FTC recommends adopting its Disposal Rule, which would require ISPs to dispose of information by “taking reasonable measures to protect against unauthorized access to or use of the information in connection with its disposal,” including “destruction or erasure of electronic media.”

These are just a few of the “disagreements” where the FTC merely pushes the FCC to enact more pro-consumer regulations within the framework of the FCC’s proposal. Of course, there are areas of legitimate disagreement. However, the FTC gives the following gloss to its comments: “the FCC will need to apply its own regulatory expertise in implementing these recommendations, in a manner consistent with its governing statutes and regulations.”

Thus, even where there are actual disagreements between the two agencies’ approaches to consumer privacy, the FCC can — and likely should — reject the FTC’s approach. For example, the FCC should reject the FTC’s suggestion that privacy protections should apply differently to “sensitive” information. That distinction would be onerous for ISPs to implement and would lead to individual ISPs defining “sensitive” in their own ways.

Let this put to bed the suggestion that the FTC does not support the FCC’s proposal. FTC Chairwoman Edith Ramirez even reaffirmed the FTC’s support for the FCC’s rule-making at a recent event. It is clear that most of the disagreement applies to areas of the proposal that can be improved by giving consumers more choice and more information. Based on the widespread support it has received from the FTC and from the public, the FCC should trust that its broadband privacy proposal is a good one, and should enact strong privacy rules without delay.

Morris is senior counsel and director of Open Internet policy for New America’s Open Technology Institute. Null is policy counsel at the Open Technology Institute.

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