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Policy / DCN perspectives on policy, law, and legislative news surrounding digital content

FCC Wading Into Privacy Matters

July 16, 2015 | By Chris Pedigo, SVP Government Affairs – DCN @Pedigo_Chris
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In response to growing consumer concerns, the Federal Communications Commission (FCC) is beginning to dig deeper into consumer privacy issues.  And, as with their first foray into these matters, it appears the FCC will take a measured and thoughtful approach.

In its Open Internet ruling (aka “Net Neutrality”), the FCC decided not to waive the Title II privacy rules.  Instead, the FCC announced it would hold a separate proceeding to figure out how the old rules in Title II should be adapted for a broadband world.  As the FCC rightly noted, “broadband providers serve as a necessary conduit for information passing between an Internet user and Internet sites or other Internet users, and are in a position to obtain vast amounts of personal and proprietary information about their customers.”

The FCC subsequently held a workshop  with industry and consumer representatives to learn more about how consumer data is collected, used and retained by broadband providers.  Some workshop participants tried to argue  that ISPs don’t have access to any special set of consumer data and that apps and websites would have the same data, but common sense would tell us differently.  ISPs have a different relationship with consumers than just about any other actor in the digital ecosystem.  Consumers constantly choose which websites to visit and which apps to download, but they cannot avoid or shield their activity from an ISP therefore there are different consumer expectations in regards to their data.  In fact, the Federal Trade Commission (FTC) has been very vocal about the different expectations that consumers have with respect to 1st vs 3rd parties.

Now, as part of this privacy discussion, Consumer Watchdog is asking that the FCC require adherence to a Do Not Track (DNT) standard to protect consumers.  While there are real concerns about how a DNT standard would be administered and whether the FCC has regulatory authority to enforce it, the request isn’t unreasonable.  Even though very few companies honor it today, an increasing number of consumers are activating their browser’s DNT signal in an attempt to block being tracked by various parties across the web.  The World Wide Web Consortium (W3C) just this week completed a technical and policy standard for how companies should respond to the DNT signal.  Interestingly, the standard is not that different from the industry’s self-regulatory opt-out program and could provide a roadmap for the FCC and companies.

It is heartening to see the FCC take a measured and thoughtful approach to learn more about how privacy rules should be implemented for broadband.  There is a real opportunity for the FCC to build upon and even strengthen the fine work of the FTC. This important effort will ultimately enhance consumer trust and grow the opportunities for the brands they love.