The 2015
Open Internet Order
(
Title II Order
) set off an era of confusion over the rules for privacy protections on the Internet and which federal agency was in charge. After assuming authority to regulate Internet service providers (ISPs) as common carriers, and thereby divesting the Federal Trade Commission of authority over them, the Federal Communications Commission (FCC) then proceeded to adopt its 2016
Broadband Privacy Order
, which imposed burdensome requirements on ISPs like those for cable and mobile telephone companies, including opt-in consent requirements. Thus, the
Title II Order
, coupled with the
Broadband Privacy Order
, had the effect of leaving non-ISP edge providers like Google, Facebook, and Amazon subject to the less stringent requirements enforced by the FTC, even though these edge providers collect far more personal data over the Internet than ISPs.
Clarity was restored after the FCC implemented its 2017
Restoring Internet Freedom Order
(
RIF Order
), which repealed the
Title II Order
, reestablishing the FTC’s jurisdiction to regulate the privacy protection practices of both edge providers and ISPs. The FTC has been the primary agency for privacy enforcement in the United States for several decades. Its expertise in this field exceeds that of any other federal or state agency.
There is no reason to believe that consumers want one set of data privacy protections from ISPs and a different set of protections from edge providers. Indeed, consumers in many cases are unlikely to be able to distinguish between providing data to an edge provider and providing data to an ISP. Moreover, the distinctions between the two are breaking down as ISPs increasingly are providing content and edge providers are offering services like Google Voice that compete with communications services offered by ISPs.
Strong evidence is now emerging that the most invasive violations of consumers’ privacy expectations are committed not by ISPs at all, but from the same edge providers like Facebook that received more favorable regulatory treatment as a result of the coupling of the FCC's
Title II
and 2016
Broadband Privacy Orders
. As we learn more about the aggressive collection and use of highly personal data by edge providers like Facebook, the approach resulting from the
Title II Order
era
favoring edge providers with less stringent requirements now seems particularly misguided.
To the extent any additional rulemaking authority is considered, as FTC Chairman Simons stated in his
address
at the Free State Foundation conference, it should be carefully "targeted."
I
f Congress seeks to strengthen current Internet privacy protections, it should so in a way that maintains the current symmetrical structure of FTC enforcement authority over both the edge providers and ISPs.
* Theodore R. Bolema is a member of the Free State Foundation’s Board of Academic Advisors and Executive Director of the Institute for the Study of Economic Growth at Wichita State University.
Read the complete
Perspectives,
with footnotes,
here
.
