Both sides were quick to weigh in Thursday (Oct. 27) after a politically divided FCC adopted new broadband privacy rules that give users more control over how their Web information is used and how it is protected by ISPs.
Some critics were already saying "See you in court."
“Although well-intentioned, the FCC’s decision to impose expansive new consumer privacy rules on ISPs far exceeds its statutory authority," said Genny Morelli, president of ITTA, which represents mid-sized telecoms. "The authority to apply the complex and burdensome privacy regime adopted today is nowhere to be found in the Communications Act or its legislative history. ITTA looks forward to participating in the legal challenge to today’s decision and is confident the decision will be found unlawful."
NCTA: The Internet & Television Association also opposed the decision, saying: “The Commission’s decision to break with the FTC’s proven privacy framework in favor of a cobbled-together approach that abandons principles of fair competition is profoundly disappointing. Instead of creating a consistent and uniform approach to privacy that consumers can easily understand, today’s result speaks more to regulatory opportunism than reasoned policy. We strongly agree with the bipartisan commissioners’ comments that the federal government should develop a common approach to online privacy, as there is no lawful, factual or sound policy basis to justify a discriminatory approach that treats ISPs differently from some of the largest companies in the Internet ecosystem that engage in similar practices but operate under different regulatory standards.”
Commissioner Republicans, who dissented from the item, warned it would be taken to court and agreed it would not stand up.
Reed Smith counsel Sam Cullari, formerly Comcast deputy general counsel focusing on privacy, said it was impossible to square the FCC's professed consumer focus with the decision.
"Huge corporations with competing interests like Comcast and Google aligning in opposition to an FCC proposal should be an obvious red flag that the FCC is charging in the wrong direction," he said. "Most consumers connect to the Internet through multiple providers, and Internet browsers like Google Chrome and social networks like Facebook are privy to a broader universe of customer information than any single ISP. Chairman Wheeler's proposal would impose strict opt-in consent restrictions on ISPs for the use of geo-location and Web browsing data while giving edge providers a pass on utilizing the exact same data."
But the decision had plenty of fans as well.
"“These broadband privacy rules are the next logical step since enshrining net neutrality in our telecommunications playbook," said Sen. Ed Markey (D-Mass.). "These rules will ensure that as technology changes, our core values do not -- that consumers, not corporations, have control over their personal information. Consumers should be able to know at any given time what kind of information is being collected about them by their Internet service provider and how that information is being used. I applaud chairman Wheeler and the FCC for putting rules on the books that honor Americans’ right to privacy.”
“Consumers demand strong privacy protections online so I commend the FCC for today’s vote to enact new privacy rules," said Energy & Commerce ranking member Frank Pallone, Jr. (D-N,J.). "I believe that no consumer—regardless of their income—should be forced to choose between their privacy and staying connected. I will therefore be reading the new pay-for-privacy rules closely to make sure consumers come out ahead.”
Public Knowledge Policy fellow Dallas Harris said: “This marks a significant step forward in protecting consumer privacy. For the first time, Internet Service Providers will be required to get consumer consent prior to using the sensitive information they collect. While much remains to be done to protect consumers online writ large, the Commission’s rules establish a baseline level of protection for all. Thanks to the rules passed by the Commission today, consumers now have more control over how their information is used online than ever before. Yet, consumer protection rules are only as strong as their ability to be enforced, so it is imperative that the Commission follow these strong rules with strict enforcement.”
Joan Marsh, AT&T SVP of federal regulatory, said: “AT&T has long been committed to a clear and transparent approach to ensuring that the privacy rights of our customers are protected. For this reason, AT&T is pleased that the FCC listened to the parties to this proceeding, including the FTC, and adopted a privacy framework that mirrors in many ways the approach taken by the FTC, which regulates the privacy practices of virtually all other companies operating in the internet ecosystem. We also support the decision by the Commission to expand the permissible scope of reasonable first-party marketing and to harmonize the voice and data rules to ensure consistent implementation and enforcement.
“The framework adopted today, however, departs from the FTC regime in significant and illogical ways, most importantly in the treatment of web browsing and app history data," she added. "In this regard, the FCC’s order falls short of recognizing that consumers want their information protected based on the sensitivity of the information collected, not the entity collecting it. The FCC’s divergent approach will ultimately serve only to confuse consumers, who will continue to see ads based on their web browsing history generated by edge providers even after they have been told by their service provider that their consent is required for use of such information.”
Jeff Chester of the Center for Digital Democracy, said: "CDD would have preferred an earlier version of the commission’s privacy proposal that didn’t make distinctions between what is 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 to protect our information."