All Consumer Privacy Rules Should Be Created Equal

By Diane Smith

Consumers deserve and expect one consistent set of online privacy protections. A recent poll found that 94% of internet users believe all companies collecting or using information online should be governed by the same set of rules. Toward that end, a coalition from across the internet has joined together to urge Congress to reject an eleventh-hour action by prior leadership at the Federal Communications Commission to impose an entirely new privacy framework on just one part of the industry, exposing consumers to inconsistent protections and creating confusion as to what their rights are depending on the service they are using.

Nearly a dozen entities have already asked the FCC to reconsider the rules. It is equally appropriate, and likely more expeditious, for Congress to eliminate the conflicting rules. At a minimum, the new FCC leadership should hit the pause button and delay implementation of the rules while regulatory appeals and Congressional action advance, as requested by nine associations (and supported by Mobile Future) in a joint petition to the FCC.

The new Administration has wisely signaled that it would like to rollback regulations that harm our economy. Rolling back a conflicting and discriminatory privacy framework that will give consumers uneven protections and tip the scales against those who invest in U.S. broadband networks is the poster-child for how strategic regulatory subtraction can be both pro-consumer and pro-growth.

To be clear, neither congressional action nor an FCC stay of the Obama-era regulations would undo any of the protections that were in place before the FCC engaged in its power grab. Internet service providers have been and remain committed to the privacy protection of their customers and last week released privacy principles they commit to follow. Consumer privacy and consumers’ interest in strong broadband networks can, should, and must advance together under a consistent and constructive government policy framework. If successful, the Petition for Stay and the request for the Hill to use the Congressional Review Act process to undo harmful and unnecessary regulations will ensure that a pro-competition, pro-consumer privacy regime can be achieved.

Consider the facts:

• The extra layer of one-sided ISP rules were forced through the FCC on a party-line vote just ten days before the presidential election, over strenuous objections by the minority and players throughout the internet ecosystem (and it wasn’t just internet service providers) who warned the new rules were uneven, unfair and would cause consumer confusion.
• In his dissent of the FCC’s broadband privacy order, now FCC Chairman Ajit Pai appropriately acknowledged that “[f]or the last two decades, the United States has embraced a technology-neutral framework for online privacy. . . . [This framework] reflected the uniform expectation of privacy that consumers have when they go online. It didn’t matter whether an edge provider or ISP obtained your data. And it certainly didn’t matter whether, as a consumer, you understood what those regulatory classifications meant — let alone the technical and legal intricacies that dictate when a single online company is operating in its capacity as an edge provider as opposed to an ISP. Regardless of all of that, the FTC’s unified approach meant that you could rest assured knowing that a single and robust regulatory approach protected your online data.”
• Now acting FTC Chair Maureen Ohlhausen has echoed those concerns, pressing for greater harmony with her commission’s long-established approach that “consumers should remain free to exercise their privacy preferences in the marketplace, and companies should be held to the promises they make.”

Mobile Future has joined in raising these concerns in the past (here and here). Because of the well-documented harm to consumers, competition and innovation that the FCC rules would create, we support the current requests because consumers deserve better.

This piece was originally published on the Mobile Future blog.