FCC, FTC are playing a shell game with online privacy

[Commentary] The Federal Communications Commission and Congress are taking steps to weaken and eliminate the FCC’s privacy rules for broadband Internet service providers (ISPs) like Comcast and AT&T. The proponents of these efforts make two arguments - neither of which will leave consumers with the privacy protections they now have and deserve.

The first is that there should be one set of privacy rules for ISPs and so-called “edge” companies like Google and Facebook, and that these privacy practices should be overseen solely by the Federal Trade Commission (FTC), which currently has no legal authority over ISPs. I agree that one set of rules for the Internet ecosystem might be desirable, but why shouldn’t they meet the higher FCC standard that affords consumers more protection? And while the FTC is an important partner to the FCC on a variety of consumer protection and competition matters, including privacy, it lacks the ability to adopt rules - a critically important tool when it comes to protecting consumers.

The second argument is that even without the broadband privacy rules, the FCC can still protect consumer privacy under Section 222 of the Communications Act, which requires telecommunications carriers to protect the privacy of their customers’ information. But there is a more fundamental problem. If, as FCC Chairman Ajit Pai believes, that the FTC, and not the FCC, should have the legal authority to regulate the privacy practices of ISPs, why would his agency enforce Section 222 at all? Indeed, his colleague Commissioner Mike O’Rielly made clear in his dissent to the October privacy decision that he does not believe the FCC has that authority today.

Nobody should fall for this privacy shell game. The FCC’s broadband privacy rules are currently the best protection consumers have for their personal information online.

[Gigi Sohn is an Open Society Foundations Leadership in Government Fellow.]