Telecom and ISP lobbyists and trade organizations have argued that the FTC and not the FCC should enforce how they manage consumer data and ensure customer privacy.
Telecom and ISP lobbyists and trade organizations have argued that the FTC and not the FCC should enforce how they manage consumer data and ensure customer privacy.

In a conference call yesterday, a panel representing telecom and broadband service providers threw its support behind a joint Congressional resolution to roll back Federal Communications Commission rules that were designed to protect consumer data collected by telecom and ISP companies.

The resolution, which was passed through Congress just hours after the call, has been decried by Internet watchdog and privacy groups for effectively nullifying rules that, among other things, would have banned broadband companies from selling consumers' data without their consent.

The panelists argued that the FCC's rules, which were passed last December, were hastily written and created an unfair playing field because they held telecom and ISP companies to more stringent privacy standards than those imposed on Internet companies like Google, which answer to the Federal Trade Commission. Furthermore, they contended that the FTC and not the FCC should continue to be the lead agency overseeing and enforcing the telecom industry's handling of consumer data, in order to create a single set of consumer privacy expectations across multiple industries.

"The FCC didn't embrace a technology-neutral framework for privacy. It instead set out an over-broad definition of sensitive data that doesn't apply to non-ISPs [that collect] as much or more personal data online. And as we all know, privacy shouldn't be about who collects information; it should be about what information is collected and how it i used," said John Leibowitz, former FTC chairman, and co-chair of the 21st Century Privacy Coalition, who also argued that the FCC's data breach notification requirements were overreaching.

Although it sounds like a consumer organization, the 21st Century Privacy Coalition is a lobbyist group funded by Comcast, AT&T, Verizon, Time Warner Cable, DirecTV, and industry trade associations, according to The Atlantic.

"We really view today's vote as an opportunity to reset policy and to get us back on track to provide a consistent framework that will minimize the confusion consumers will otherwise have when different parties are collecting data online, and to advance principles of fair competition that we all want to live under," said fellow panelist James Assey, executive vice president at NCTA – the Internet & Television Association.

Panelists also attempted to assure the public that the consumer experience would not change if the resolution is signed into law by President Donald Trump, because the FCC rules hadn't even taken effect yet. They also insisted that industry self-regulation, FTC oversight and state privacy laws already provide ample protection for consumers.

"All of the major ISPs have made commitments in the form of a set of privacy principles that they have publicly adopted, and if they don't follow those commitments with respect to respecting consumer choice, providing transparency, really all of the key high-level features of what the FCC covered, they are subject to enforcement by the Federal Trade Commission and by many, many of the 50 states attorneys-general," said Jim Halpert, general counsel with the Internet Commerce Coalition, a lobbying group for ISPs and e-commerce providers. "Secondly, with respect to data security, there are ample rules at the state level requiring both notification of security breaches and protection of personal information."

In the wake of the U.S Senate passing the resolution and sending the legislation to the House, the panelists largely dismissed the resulting outcry from privacy watchdog groups and opposing lawmakers (primarily Democrats) as hyperbole. Leibowitz even invoked the loaded term "fake news."

"In political debate in Washington it's very common for advocates on one side of an issue to claim that the world will collapse if a particular policy initiative goes through, and there's a little bit of that going on with respect to policy enforcement with regard to broadband ISPs," said Halpert.

"It's always easier for one side to create a 'parade of horribles,' but when you track back what the charges are, they almost never reflect what ISPs are actually doing," said Assey.

Howard Waltzman, general counsel with the 21st Century Privacy Coalition, said that public fears surrounding how ISPs can potentially abuse consumer information have been "ginned up."

"I think there's a lot of misinformation out there that somehow ISPs use online information differently than other companies in the Internet ecosystem, or that they even have the ability to see information that others do not," said Waltzman.

When pressed over whether consumers are at all justified in their concerns that legislators are striking down one of the few notable federal policies passed in recent memory that addresses consumer data privacy, Waltzman replied, "If they're concerned about what all parts of the Internet ecosystem are doing, then that should be part of the debate..." But "there shouldn't be a separate set of rules for ISPs and there shouldn't be concerns that specific rules for ISPs are not going to go into effect..."

The panelists also included B. Lynn Follansbee, vice president of law and policy at USTelecom; Julie Kerney, vice president of regulatory affairs at the Consumer Technology Association; and Emmett O'Keefe, senior vice president of advocacy at the Data & Marketing Association (DMA).

Asked if the telecommunications industry would be willing to work with members of Congress in the future to develop a more defined federal privacy policy that applies across all relevant industry sectors, the panelists were noncommittal with their responses. However, Waltzman did say that the industry would be open to the FTC updating its guidance as needed. "If the FTC was thinking about changing its approach to privacy, our industry, the advertising industry, the tech industry, would all participate in that proceeding and we'd see where we'd end up. But I think it's all speculative to think about where they may end up differently."