Not So Fast on FCC Privacy Regulation

[Commentary] We expect regulators, at least those within a single administration, to speak with a common voice. So when the Federal Trade Commission staff took the unprecedented action of criticizing proposed Internet privacy rules being considered by the Federal Communications Commission, it became clear we must hit the pause button.

The FCC proposes to replace that system with much broader “opt-in” requirements that ignore the sensitivity of the data. But unmooring the level of data protection from consumer expectations is counterproductive and wrong — 83% of consumers believe online privacy should be based on the sensitivity of data, not the kind of company or organization gathering it. As one FTC commissioner put it, the FTC filing “politely recognizes that the FCC’s current proposal would impose more restrictions than are necessary to protect consumer privacy in many cases, and yet would fail to protect consumer privacy in others.” When I was in the leadership of the FTC, we often filed comments guiding states or other regulators to recognize the need for regulatory humility. Regulations and legislation can become permanent impediments to competition. When the nation’s leading consumer-protection enforcer says you’ve gotten it wrong, it’s time to rethink and return to the drawing board.

[David Balto is a former policy director at the Federal Trade Commission and a former attorney in the Justice Department’s antitrust division]