Americans Win Significant Broadband Privacy Rights in Historic FCC Decision

Statement of Jeff Chester, executive director, Center for Digital Democracy October 27, 2016: The Federal Communications Commission, led by Chairman Tom Wheeler, delivered a very early Christmas present to Americans today. For the first time, the public will be guaranteed that when they use broadband to connect to the Internet, whether on a mobile device or personal computer, they will have the ability to decide whether and how much of their information can be gathered and used by Internet Service Providers (ISPs) without first getting their consent. This is a tremendous public interest breakthrough for privacy rights in the U.S., which lags behind nearly every other democracy when it comes to protecting online privacy. Today’s decision (link is external) provides a new crucial consumer protection safeguard. When consumers use a mobile app or engage in search, that information cannot be stealthily monitored and used by their ISP without a person first agreeing it can do so (known as opt-in). Such information is classified by the commission as “sensitive” data and triggers a set of rights for the consumer. The new rule is a critical building block for better protecting our privacy in this period of growing commercial surveillance, and should significantly curtail the ability of ISPs to stealthily monitor our activities. The handful of phone and cable giants that dominate the broadband telecommunications market are increasingly using sophisticated data-mining techniques to track and analyze their customers, whether at home or—via a mobile phone—on the go. This new rule will help ensure that a consumer’s most personal information—about their finances, health, geo-location, children—will not be swept into this far-reaching apparatus. Safeguards to prevent unfair “pay-for-privacy” schemes are also part of this new FCC order—and we expect the commission to be vigilant to make sure consumers aren’t forced, because of financial circumstances, to give up their privacy. The 3-2 vote is also a rejection of the intense lobbying conducted by the phone and cable lobby, as well as by other Internet giants, to effectively kill the plan. They aggressively lobbied to weaken the FCC’s proposal, disingenuously arguing that the commission should merely adopt the Federal Trade Commission’s privacy regime. They preferred the FTC’s approach because it doesn’t have any real legal teeth, and has allowed Internet giants to freely gather and use our data without any regard to our privacy. One reason that Americans face a crisis today in terms of their loss of privacy is because the FTC has been prevented from having the regulatory authority to actually protect the public. The very same companies calling for its approach have tirelessly worked to undermine its authority, in Congress and the courts.

CDD would have preferred an earlier version of the commission’s privacy proposal that didn’t make distinctions between sensitive and non-sensitive data. This is a concept that is increasingly irrelevant today, because of technological advances in “Big Data” analytics and the massive growth of consumer data across all devices, where innocuous data can be used to generate highly personal and sensitive details. But today’s FCC decision is a critical advance in protecting our information. This decision sets the stage for a long-overdue debate on the need also to protect the privacy of Americans who use other online services, including Google and Facebook. It sets a critically new privacy baseline, which should lead to action by Congress that provides strong privacy protections for all of us, regardless of the devices or online services we use. These rules also need to be applied to any plans by AT&T and Time Warner to expand their commercial data activities under their proposed merger. Finally, this victory would not have been possible without the FCC’s Open Internet decision (network neutrality). That triggered this privacy review, so that long-standing privacy safeguards when we use our telephones was brought up to date. A truly open and democratic Internet requires one that incorporates robust privacy safeguards. Today’s decision is step one in helping achieve that important goal.