The Need for Uniform Broadband Privacy Rules for Consumer Data

Updated: Oct 13, 2020


On January 23, Commissioner Ajit Pai was named as the new Chairman of the FCC. Because the new Chairman has been a Commissioner at the FCC during its most recent decisions surrounding net neutrality and broadband privacy, it is no secret that he agrees with critics of the FCC broadband privacy rules (see his dissent on the FCC’s rules here: https://apps.fcc.gov/edocs_public/attachmatch/FCC-16-148A5.pdf). In brief, Pai has argued that the FCC’s broadband privacy rules should parallel the FTC’s privacy framework as closely as possible. Pai has also questioned the FCC’s authority and expertise to regulate privacy and warned of confusion and harmful consequences that would flow from inconsistent privacy protections for ISPs and edge providers like Google and Facebook. As Pai wrote in his dissent, “[R]ules that apply very different regulatory regimes based on the identity of the online actor … make[] no sense.” One of the issues that we have come across as we discuss privacy rules has been the general sense of confusion in this area by the public at large. We have indicated the following issues for consideration as important to any FCC rulemaking proceeding on the issue of online privacy.

There must be both clarity and predictability in the privacy rules governing the use and sharing of consumer data. First, the current FCC rule apply only to ISPs and do not apply to some of the biggest data collectors out there, such as Google and Netflix. Second, these rules differ from the FTC’s privacy rules in some key respects, such as applying different notice and consent obligations on ISPs than apply to edge providers and other online data collectors. The result will be consumer confusion as to what data is protected and how it is used and shared. A consumer who reviews an ISP’s privacy policy would be justified in believing that such policy will apply to all of that consumer’s online activity without realizing that as soon as they leave the ISP’s portal to, for example, perform a Google or Facebook search, those protections no longer apply. It is difficult enough currently for consumers to take charge and educate themselves about their online privacy settings, rights, and choices without now addi