Recent telecom news has been dominated by the congressional rollback of a not-yet-enacted Federal Communications Commission (FCC) privacy rule for internet service providers (ISPs). As noted by fellow TechPolicyDaily.com blogger Daniel Lyons, no actual law (0) has been changed. But the truth is that the current furor over eliminating digital privacy protections is just late — the FCC removed privacy protections for consumers more than a year ago by passing the Open Internet Order. Although the timing is off and the legal issues involved have been incorrectly framed by the popular press, the current uproar over online privacy is by no means unproductive.
As we move further into the world of the Internet of Things, in which our refrigerators can tell our driverless cars to go pick up milk at drive-thru, cashier-less convenience stores (you heard it here first!), who controls the data generated by these future activities is of great concern. Is it the owner of these devices? The companies behind the technologies that generate the data? Both? A related question is also vitally important: Which government agency (or agencies) will assist companies, innovators, and consumers to maximize their technology options while also protecting their privacy?
That is why I was heartened to see the release of a joint op-ed (1) by FCC Chairman Ajit Pai and FTC Acting Chairman Maureen Ohlhausen earlier this week. They reiterated the conclusion of the Obama-era FTC that maintained “’any privacy framework should be technology neutral’ because ‘ISPs are just one type of large platform provider’ and ‘operating systems and browsers may be in a position to track all, or virtually all, of a consumer’s online activity to create highly detailed profiles.’”
That’s the right policy — seamless. The two chairmen went further and pointed out that FCC rules targeting only ISPs with onerous regulatory requirements were about the “government picking winners and losers.” Citing a paper written by several authors including Peter Swire, President Bill Clinton’s chief counselor for privacy and President Obama’s special assistant for economic policy, they note that “’ISPs have neither comprehensive nor unique access to information about users’ online activity. Rather, the most commercially valuable information about online users . . . is coming from [non-ISP] contexts,’ such as social-media interactions and search terms.” Arguing for a comprehensive, singular regime for protecting consumer privacy, the chairmen agree that the FTC should take the lead in the job to come.
The future is coming. It is moving at the speed of technology and can be halted most quickly by ill-considered regulation. I hope the recent privacy concerns reflected in social media and in the press do not die but are channeled out of misplaced panic and into the productive debate necessary to protect our privacy without unnecessarily impeding the bold, innovative world that is yet to come. The FCC and FTC chairmen have taken a unified first step down that very path.