Getting Internet Privacy Right

Steve Jobs once observed “there are unintended consequences to everything” – a statement that definitely applies to the internet, which Jobs himself helped usher in. It’s the most powerful and far reaching communication technology ever invented, but it also demands that consumers and companies be vigilant in protecting online privacy. And here’s where the Federal Communications Commission seems determined to upend the country’s few pro-consumer success stories and endanger an entire ecosystem of protections, protocols and policies that will in turn further destabilize America’s leadership position with the rest of the world.

The FCC proposals turn years of established privacy policy on its head. The agency is abandoning the administration’s longstanding commitment to a transparent and evenhanded approach in which the protection for data is determined by its sensitivity, something Americans have uniformly said they want. According to data before the FCC, 94 percent of internet users believe “[a]ll companies collecting data online should follow the same consumer privacy rules” and 83 percent think privacy protections should be based on the sensitivity of their data, rather than who collects or uses it.

And it is not just ordinary consumers who are concerned.

Security experts have weighed in to explain how the FCC’s proposals will in fact undermine efforts to bolster cyber security. Civil rights and consumer groups have loudly voiced their concerns about the way the rules will impact access to new products and services, prices for broadband and the general state of competition across the internet sector that keeps companies from harming consumers. These same groups recognize what we all do but the FCC apparently does not – private information should be protected from exploitation by any company, not just a few.

This is no partisan issue. The Obama administration’s Federal Trade Commission actually filed comments warning that the proposal to create different rules for different internet companies is a bad idea (“not optimal” in the delicate language favored by bureaucrats worldwide). That’s a striking development where peer agencies generally go to extreme lengths to avoid airing their disagreements in public. Chairwoman Edith Ramirez reiterated FTC concerns over the divergence in privacy policy earlier this week while speaking at the Technology Policy Institute’s 2016 Forum in Aspen, Colo., stating, “If you have basic privacy laws across the board, you then wouldn’t have … as large a discrepancy between” agencies.

And even more striking, the renowned Harvard Law School Professor Laurence Tribe also analyzed the FCC’s proposals and concluded they were so arbitrary and unfair that they violate the U.S. Constitution. In Tribe’s view, the government cannot draw artificial distinctions between businesses and speakers like ones the FCC is trying to draw between broadband providers and “internet” companies.

Concerns around the proposed privacy regulations are not confined to the U.S., however. There has also been a significant outcry from European officials who are watching the discord between the FCC and the FTC with a wary eye.

Rather than rush heedlessly forward with destructive and unconstitutional regulations, the FCC should return to the administration’s first principles on privacy and come forward with a new proposal that is straightforward, consistent with consumer expectations and that applies equally to the entire internet ecosystem.

Shane Tews is a visiting fellow at the American Enterprise Institute’s Center for Internet, Communications, and Technology Policy. She previously dealt with internet security and domain issues as vice president of global policy for Verisign Inc.

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