March 2017

Legislation approved by the Minnesota House and Senate the week of March 27 would prevent Internet service providers from collecting personal information without written approval from customers. The quick action came in response to the US House and Senate voting to eliminate nationwide rules that would have forced ISPs to get consent from Americans before using or selling Web browsing history and app usage history for advertising purposes.

President Donald Trump is expected to sign off on Congress' decision to kill the Federal Communications Commission privacy rules. While there wouldn't be any rules for ISPs at the national level, states could try to implement some form of the FCC rules for their own residents. ISPs might conceivably change their practices nationwide if enough states do so, or customers in some states could have fewer privacy protections than customers in other states. As on climate change, immigration and a host of other issues, some state legislatures may prove to be a counterweight to Washington by enacting new regulations to increase consumers’ privacy rights.

[C]ompanies that collect and use the most customer information on the internet are not the Internet service providers but other internet companies, including operating system providers, web browsers, search engines, and social media platforms. And the Federal Communications Commission rules had nothing – literally nothing – to do with these companies or their practices. Indeed, in fashioning the rules, the Tom Wheeler FCC gave consumers a false sense of security by limiting how ISPs – and ISPs alone – use internet data while knowing that other competitors in the internet ecosystem had access and freedom to use the same data across whatever platform the consumer used to access the internet.

AT&T’s approach, which is to focus on the nature of the data and have a consistent framework on collection, use and sharing, was actually the Obama Administration policy for nearly eight years until the Wheeler FCC did a sudden about-face. Hopefully, this week’s action by Congress gets us back on the path to a more rational and consumer-friendly framework. I am also hopeful that facts actually work their way back into the debate.

The North American Free Trade Agreement (NAFTA) with Canada and Mexico is expected to be at the top of the list for renegotiation under the Trump Administration. The treaty’s telecommunications provisions include a “bill of rights” for providers and users of telecommunications services that cover access to public telecommunications services; connection to private lines that reflect economic costs and availability of flat-rate pricing; and the right to choose, purchase, or lease terminal equipment best suited to their needs. These free-market principles reflect American values.

Barriers such as international roaming rates for mobile calls, restrictions on cross-border transfer of digital information (such as electronic payments and digital signatures), and the forced localization of data centers have a detrimental impact on American companies. Consequently, the Trump Administration would be well-advised to advocate for a broader bill of rights that adheres to the notion of freedom of choice. It should uphold the ability of US companies to offer their world-class information services in Canada and Mexico. Such a position may be easier to gain in a renegotiated agreement since the other items on the NAFTA version 2.0 agenda (e.g., tariffs) undoubtedly will receive greater scrutiny and are likely to be far more contentious.