Protecting Privacy, Promoting Competition: A Framework For Updating The Federal Communications Commission Privacy Rules For The Digital World

This paper examines how the Federal Communications Commission might apply privacy rules to broadband Internet access services now that these are classified as Title II telecommunications services. This paper provides necessary background by exploring the history and purpose of Section 222 of the Communications Act, which imposes a duty on Title II carriers to protect the “proprietary information” of their customers or interconnecting networks. The paper also reviews the FCC’s general privacy jurisdiction and its complementary relationship with the Federal Trade Commission. The paper also examines the existing and potential information collection habits of broadband providers, illustrating why the FCC must act now to protect consumer privacy and over-the-top (OTT) competition.

Finally, the paper concludes with recommendations for the FCC’s upcoming privacy proceeding, including: (a) Prohibit carriers from blocking or otherwise interfering with the ability of consumers to protect themselves from tracking by ordinary means (such as clearing cookies) without requiring users to employ encryption; (b) Prohibit carriers from collecting information on competing services at interconnection points and other places of traffic exchange; and (c) Update the FCC’s privacy rules governing cable and wireless services to prevent carriers from exploiting potential loopholes to gain unfair advantage from the unique relationship between the carrier and the customer.