AN OPINION PIECE ON AN OPINION PIECE

Last night, around 8pm PST, Ajit Pai, chairman of the Federal Communications Commission and Maureen Ohlhausen, acting chairman of the Federal Trade Commission published the opinion piece below through the Washington Post:

No, Republicans didn’t just strip away your Internet privacy rights

Simply put, Pai and Ohlhausen argue for a clean slate to rebuild privacy policy that covers the entire internet ecosystem however, the internet ecosystem is much more intricate than a one-size-fits, catch-all internet privacy policy could cover. Much like we are learning through making successful internet based content, when looked at more closely, the internet as a whole is a group of interconnected niches. Blanket policy could potentially do the opposite of Pai/Ohlhausen’s stated intentions.

Pai/Ohlhausen’s summarized argument:

-Obama’s FCC took the oversight of ISP’s Privacy policy away from the FTC, who had up until that point been doing the job properly.

-Trump’s FCC seeks to dismantle areas of Obama’s FCC actions found to be problematic and rebuild from a clean base, this starts by having Trump sign into law the nullification of Obama’s FCC’s action RE: ISP privacy

-Trump’s FCC seeks to allow the FTC, with guidance from the FCC to regulate privacy across the entire internet, to not fragment privacy rules between content providers and platform providers.

Taken at face value, a lot of what Pai and Ohlhausen are saying in their opinion piece is good:

“Let’s set the record straight: First, despite hyperventilating headlines, Internet service providers have never planned to sell your individual browsing history to third parties. That’s simply not how online advertising works.”

“Up until that decision [by the Obama FCC to regulate privacy in the ISP sector], the FTC was an effective cop on the privacy beat, using a consistent framework for protecting privacy and data security throughout the entire Internet ecosystem.”

But then, it takes a turn into a territory supported by “Alternative Facts”:

“The Obama FTC, in a unanimous bipartisan comment, criticized this approach as ‘not optimal.’ In Washington-speak, that’s a major rebuke.”

The ‘not optimal’ language is in bold below in full context:

“In providing its comments [comments that said the actions of the FCC will protect consumers and are good], FTC staff is mindful that the FCC’s proposed rules, if implemented, would impose a number of specific requirements on the provision of BIAS services [Broadband Internet Access Service] that would not generally apply to other services that collect and use significant amounts of consumer data. This outcome is not optimal. The FTC has repeatedly called for Congress to pass additional laws to strengthen the privacy and security protections provided by all companies, however, including through baseline privacy, data security, and data breach notification laws applicable to all entities that collect consumer appropriate protections for consumers’ privacy and data security across the marketplace. FTC staff continues to believe that such generally applicable laws are needed to ensure appropriate protections for consumers’ privacy and data security across the marketplace.”

The Obama Era FTC was saying they had been trying to get Congress to pass all-encompassing laws but had been unable to do so, they were saying the partial regulation passed by the FCC is a half measure and that the FTC wanted more regulation. Okay, great: Congress passed a half measure during Obama’s term, now, Trump’s FCC could work with a Congress they control to pass additional measures and policies that would have completed the request of the Obama Era FTC. They could have worked to “…pass additional laws to strengthen privacy and security protections provided by all companies.” Instead, the Republican majority is pulling back policies that the Obama Era FTC, in their opinion statement, said were good for consumers, when the Republican majority could have worked to build and pass additional policies and legislation that would have focused on the other components of the internet ecosystem.

Another, with a smidge of rhetoric added…

“But in 2015, the FCC decided to treat the Internet like a public utility, taking away the FTC’s ability to police the privacy practices of broadband providers. This shifted responsibility from the agency with the most expertise handling online privacy (the FTC) to an agency with no real experience in the field (the FCC). As we feared, this 2015 decision has not turned out well for the American people.”

But how? The policies Trump nullified had not gone into effect. Net Neutrality and the classification of the internet as a public utility have not gutted innovation, if anything they have bolstered it. Also…

“Others argue that ISPs should be treated differently because consumers face a unique lack of choice and competition in the broadband marketplace. But that claim doesn’t hold up to scrutiny either. For example, according to one industry analysis, Google dominates desktop search with an estimated 81 percent market share (and 96 percent of the mobile search market), whereas Verizon, the largest mobile broadband provider, holds only an estimated 35 percent of its market.”

It’s very, VERY easy to switch to a different search provider. It is easier to choose a different mobile internet provider than a broadband internet provider, there is choice in mobile internet. There isn’t much choice when it comes to broadband access that provides WiFi level speeds and access. Consumers may be using their cellphones and tablets to consume more content these days but the best experience comes when streaming through a high-speed WiFi connection provided by an oligopolistic sector of the internet ecosystem.

Pai and Ohlhausen finish the opinion piece with this sentence:

“In short, the Obama administration fractured our nation’s online privacy law, and it is our job to fix it. We pledge to the American people that we will do just that.”

A statement like the above, made by an appointee who does not favor Net Neutrality (rules that protect our interest in full, equal access to content), feels disingenuous, again, like spin or an “Alternative Fact”. Not favoring Net Neutrality only protects the giant oligopolistic corporations with major lobbyists in Capitol Hill. I currently doubt Pai’s intentions and hope that I am completely wrong, I hope that Ohlhausen and Pai will be able to (and intend to) implement privacy policy that are all encompassing, that protect the American consumer and favors us over Corporations. There needs to be a balance between market function and consumer protection, the repeal of the Obama Era policy RE: privacy is a step backward and only worth the step backward if we take 2 steps forward. That means:

-incentivizing Broadband Internet Access Service providers to innovate and provide better service to their customer base (as discussed in previous issues of this THE ARK NEWSLETTER, my choice of internet provider is two companies, limited choice, poor service: oligopoly)

-any and all businesses that deal in customer data sale or access must have their privacy policies regulated in a way that does not disrupt their ability to grow, innovate and profit but at the same time protects the individuals they are monetizing

Had the final sentence in Pai and Olhausen’s opinion piece read like the rephrasing put forth below, we’d feel a bit different, wouldn’t we?

“In short, the Obama administration took a step toward fixing privacy law that was and is much needed. It is our job to pick up the mantle and continue implementing policy that will protect the American people, while allowing markets to function and flourish properly; from platform provider to content provider and everything in between. We pledge to the American people that we will do just that.”

Much like our concern with Tom Wheeler (a former lobbyist and top executive at the companies he was set to regulate) when he was first appointed Chariman of the FCC, time and continued actions protecting the people and striking the proper balance between consumer and corporation will tell if Pai is for the people, or not.