Chairman Wheeler’s FCC has been marked by a number of contentious, partisan proceedings, include the Open Internet rules (0), the set-top box proposal (1), the municipal broadband controversy (2), and privacy (3). In all of these proceedings, one can make the argument that it appears that one industry is using the FCC as a tool to regulate another. In the case of the agency’s foray into privacy regulation, the rules have been seen by many (myself included) as a tribute to the advertising platforms (4) that stand to benefit if broadband providers faced more barriers to entry to the advertising market. For that reason, it is welcome to see Google’s call for a level playing field when it comes to online broadband privacy.
Saying that the FCC should not “unnecessarily increase regulatory burdens on the Internet,” Google’s head of communications law, Austin Schlick, former lead counsel at the FCC, called (5) on the agency to “reflect in any new privacy rules for internet service providers the same balance that the FTC successfully strikes in its framework.” Notably the FTC’s superior approach to privacy focuses on the kind of information that is being collected and its sensitivity. The FCC, on the other hand, would put scrutiny on all information collected by broadband providers, regardless of whether it is sensitive or not. Given that users’ expectations as to how online health or financial transactions are protected differ significantly from what they expect for their web browsing, is makes sense that regulations should be commensurate with the sensitivity of the information.
The FCC wading into ISP privacy rules also creates a needless turf battle between itself and the FTC. The FTC is clearly the expert when it comes to privacy, having enforced hundreds of cases and having developed the expertise with its army of analysts over the decades. The FCC, on the other hand, is freelancing in the online privacy space. It seems as though the only reason they would conduct this rulemaking is because the Title II reclassification gives it authority to do so. The FCC never conducted a study to see the necessity to do so. No one has complained to the FCC that broadband providers have abused their privacy.
Google should be congratulated for advocating for a common privacy standard across the ecosystem, using the FTC standard. This avoids consumer confusion and regulatory duplication. To the extent that other this allows other platforms to compete with Google in the advertising market, antitrust concerns could be dampened. It’s in Google’s interest to support competition, as it could help dampen antitrust concerns (an issue that has spurred the European Commission to suggest Google may be subject to billions of dollars in fines (6)).
Privacy will likely be on the agenda for the FCC’s open meeting in October. With less than four weeks left until the election, it is expected to see the Democratic-led FCC try to get rules on the books. But Google’s letter suggests that the FCC needs to take it easy and not rush to make rules before the clock runs out.