McSweeny: FTC Cannot Maintain Internet Privacy Alone

The lone Democratic commissioner at the Federal Trade Commission, Terrell McSweeny, is criticizing the recent reversal of privacy regulations passed by the Federal Communications Commission, saying her agency cannot be solely responsible for policing internet service providers’ privacy practices and maintaining the principles of an open internet.

During a Monday event at New America’s Open Technology Institute, McSweeny took aim at a measure passed by Congress — and signed into law by President Donald Trump April 3 — repealing the FCC’s broadband privacy rules.

“What we have at the moment is a rapid implementation of a ‘no cops on the beat’ approach to privacy and data security,” McSweeny said. “In which control over who gets our sensitive information rests in the hand[s] of very few large companies which are the gatekeepers for our connections to modern life.”

The FTC can’t fill the privacy protection gap left by the repeal of the FCC’s rules; a federal appeals court ruled in August that the FTC does not have jurisdiction over common carriers. It will therefore not be able to properly enforce privacy in the broadband sphere until Congress passes legislation to give the agency power over broadband, cable, and wireless carriers, McSweeny said.

“We can’t count on the marketplace or competition to deliver us better options, because our broadband markets are highly concentrated,” McSweeny added. She noted that three-quarters of Americans only have one choice for a high-speed broadband provider, a reference to a Sept. 4, 2014, speech by then-FCC Chairman Tom Wheeler.

The debate over which agency has the power to regulate broadband comes after the FCC reclassified internet service providers as common carriers in the 2015 Open Internet Order. That order served as the foundation for the agency’s now-repealed privacy rules that required broadband companies to get express consent from customers before selling personal information, including web browsing history and app usage history.

Tom Struble, policy counsel at the free-market think tank TechFreedom, which has suggested the FCC’s regulations on privacy unnecessarily muddled the regulatory landscape, said during a panel discussion at the event that the FCC should work “cooperatively” with the FTC and that both should utilize their “core competencies.”

The FCC is a “sector-specific regulator in telecommunications” staffed with “experts in telecommunications, the engineering that goes along with that and accounting,” Struble argued. “To the extent that those are at play in the net neutrality context or the privacy context, I think the FCC has a continuing role to play,” he added.

The repeal of broadband privacy rules wasn’t McSweeny’s only target of criticism at the New America event. Republican FCC Chairman Ajit Pai also drew McSweeny’s ire, due to his reported plan to replace the net neutrality rules with voluntary agreements from internet service providers to uphold the tenets of an open internet — such as the prohibition of blocking or throttling content and barring broadband companies from creating “fast” and “slow” lanes of the internet.