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.
We recognize that the FTC no longer has jurisdiction over ISPs’ privacy practices given the FCC’s classification of ISPs as common carriers in its net neutrality decision. However, ideally the FTC should be empowered to continue to regulate ISPs in the same manner as other online data collectors -- either by reclassifying ISPs as information service providers, or by Congress making clear that the FTC has sole jurisdiction to apply consistent, technology-neutral regulations to the privacy practices of all online entities including ISPs. At the very least, we encourage the FCC to revise its broadband privacy rules so they are truly consistent with the FTC’s time-tested and successful privacy framework that protects data for all consumers and treats all companies equally, thereby avoiding consumer confusion.