Today’s news is filled with concerns about personal privacy. In particular, headlines point to unresolved questions regarding control over personal information privacy. Who should control the digital footprint we all leave behind? As someone who teaches digital natives who fluidly move from Snapchat to Facebook to the next big thing, I am a privacy dinosaur — somewhere between a privacy absolutist and a privacy realist. For that reason, I am sympathetic to moves to give individuals rights to their own information. However, a legal divide on consumers’ informational privacy rights is in the internet ecosystem. Rather confusingly, under a recently passed Federal Communications Commission (FCC) rule, consumers have certain informational rights against their internet service provider (ISP) but do not have similar rights against digital applications such as Facebook or Google.
To consumers, an ISP using customer geolocation data (for example) to send them relevant advertising or Google using geolocation data to send them relevant advertising is a distinction without a difference. To require that consumers opt-out of a default privacy protection regime for ISPs (i.e. require that ISPs only use consumer data with the consumer’s express permission) and opt-in to a privacy regime for their use of Google or Facebook (i.e. permit entities to use consumer data unless the consumer expressly prohibits it) potentially confuses the privacy issue.
Why doesn’t the FCC just apply the same privacy law to Google and Facebook? Because it can’t. One of the legal side effects of the recent decision to classify ISPs as Title II carriers is that the FCC arguably has more regulatory control over various aspects of the carriers’ business operations. Specifically, the FCC’s Title II decision also impacted the Federal Trade Commission’s (FTC) jurisdiction over these new, Title II carriers. That is significant in many ways but in particular for privacy issues because it is the FTC, the United States’ consumer protection agency that generally establishes consumer privacy protections in the digital space.
The FTC has had a “light touch” approach that seeks to balance consumer privacy rights while enabling companies to personalize advertising that can benefit consumers and companie. After all, there would be no Google without advertising revenue. The benefit of the FTC’s place in the privacy driver’s seat is that the agency enjoys plenary jurisdiction over most United States’ commerce. In the digital space, for example, the FTC could formulate policies for almost all the businesses in the internet ecosystem, regardless of technology, to create a seamless consumer privacy experience. The FCC rule has disrupted that holistic policy approach so that what exists at the moment are asymmetric rules tethered to legal definitions more than to consumer experiences.
Indeed, even privacy advocates, understandably, miss the asymmetric nature of privacy rules, voice support for the FCC rule, and rail against advertisers (0) “that capture everything we do — on Facebook, Google, in the store, on our mobile phones and more.” The FCC rule will not affect advertising on Facebook or Google.