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InContext / An inside look at the business of digital content

A level playing field for companies and consumers

May 25, 2017 | By Chris Pedigo, SVP Government Affairs – DCN @Pedigo_Chris

Whether your browsing history should be private by default has become a key question in the past year. Shortly after the election, Congress repealed privacy rules that would have required broadband providers to get consent from consumers before they could share this consumer data with advertisers. Members of Congress noted that it was unfair to apply these rules only to the internet providers but not to other giant digital companies, including Facebook and Google. When Senators and Representatives returned to their home districts, however, they promptly got blasted by some of their constituents for appearing to protect the shady practices of cable companies.

Partly in response to the backlash, Rep. Marsha Blackburn (R-TN) introduced the BROWSER Act. It’s a bill designed to level the playing field for companies that collect data about consumers at massive scale. And it is inclusive of all companies that are able to collect data across much of the web like ISPs, Google and Facebook. At the same time, the bill guarantees more transparency and choices for consumers. Ignore the shrill extremists in this debate. For good faith actors representing industry or consumer groups, there’s a lot to like about this bill.

In short, the bill would require companies to obtain opt-in consent from consumers before using “sensitive” data. This would include financial, location, and health information as well as browsing history and app usage. Some have argued browsing history and app usage shouldn’t rise to the level of sensitive information. However, common sense suggests otherwise. How would you feel if someone tried to buy and then publish a list of the websites you visit? In short, this bill says where you go in both the real and virtual worlds should remain private until you grant consent. I find it hard to argue with this.

The bill goes a step further in prohibiting companies from altering or denying service for consumers who do not opt-in. This provision is likely to draw the ire of industry lobbyists. But there’s a lot of merit in putting the onus on companies to develop a good “elevator pitch” for consumers. Companies that convince customers of the value to consumers are likely to be rewarded with their business—and trust.

The bill also requires a “clear and conspicuous” privacy policy that is easy to find. This generally codifies what is standard practice for good actors today. It’s unlikely that anyone can make a credible argument against providing transparency for consumers.

Finally, the bill designates enforcement authority to the Federal Trade Commission (FTC). This is something that the entire cable lobby advocated for just a few months ago. Consumer advocates might want more robust enforcement tools for the FTC, but I question whether the federal rulemaking procedure is agile enough to adapt to changing technologies and business models. FTC guidance and enforcement cases can provide useful direction and clear lines for appropriate behavior.

To be clear, this is just the beginning of a long and uncertain legislative process. But, it’s an important development that Rep. Marsha Blackburn (R-TN), a conservative Republican with a decent amount of experience with tech issues, has moved down this path. The fact that a few voices at the edges of the spectrum are opposed means she probably got it exactly right.

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