Wheeler Launches Broadband Privacy Discussion

Title II Reclassification Puts Ball in FCC's Court

FCC chairman Tom Wheeler called the broadband privacy workshop the commission hosted Tuesday the beginning of a very important discussion.

The FCC is trying to decide how to regulate broadband CPNI (customer proprietary network information), now that it has reclassified ISPs as telecoms out of the reach of the Federal Trade Commission, which is now prevented from exercising authority given common carrier exemption.

Wheeler said that the issue falls under a broader one, which is the basic concept that "changes in technology don't change our values."

He said that privacy is unassailable and how the FCC deals with it is what makes the issue and the era so challenging, but exciting at the same time.

Wheeler detoured a few centuries to point out that Alexander Hamilton was concerned about the mail being compromised as he and the founding fathers were hammering out the Federalist Papers, then jumped to the Civil War to talk about Rebels cutting the telegraph wires— Wheeler wrote a book about Lincoln's use of the telegraph during the war — and putting the wires to their tongues to sense the pulses and hack the messages.

But he returned to the present day to make the point that the issues were not new, and that in this era increasingly the information and the networks are becoming increasingly synonymous.

Wheeler said Congress was explicit in its instructions to the FCC, which was that consumers have the right to expect privacy of the information network collect about them. The FCC has been overseeing that CPNI relationship when it comes to phone, including VoIP, and traditional video — VOD records, for example — but broadband CPNI is new territory.

Wheeler said that in a digital world, everyone leaves digital footprints "all over the place."

The FCC signaled in the Title II decision that it would not simply transplant the phone CPNI regime, but did not say how it would approach broadband privacy, which was the purpose of the workshop.

Wheeler said the goal was to answer two questions: How to insure consumers are protected and how to promote the virtuous circle of innovation and investment.

During the day-long panel session, industry panelists warned against imposing new rules, particularly ones that did not take into account that edge providers have mostly the same data sets ISPs have.  AT&T's Robert Quinn, senior VP and chief privacy officer, said that networks may have at one time had unique access to data due to its collection ability, but that the data sets it now has are not unique with hundreds of companies on the edge able to assemble that data. He suggested that if the FCC is going to get into the broadband privacy environment — and clearly it is — it needs to look at the totality of the issue, which would include edge providers like Apple and Google.

He also pointed out that AT&T needed to continue to be a player in the ad-supported space, which was a driver of the data collection at issue. But  his bottom line was that whatever the FCC does to regulate in the privacy space, it has to be consistent, irrespective of the underlying technology.

Public Knowledge's Harold Feld said that if the ISP's were in the ad-supported data space, it was unusual that it would be making the argument that edge providers have just as much useful information as they do, saying "take our info even though others can give it to you better" was not a very good marketing slogan. He dismissed what he said was the argument that all that information is out there anyway and not to trouble with what ISPs are doing.

While industry players were suggesting the FTC still had some authority to go after advertising, Feld said the FCC had the experience and the rulemaking authority to take the lead on privacy.