Differences Between Content and Carrier Privacy

            With narrow thin margins, both the U.S. Senate and House of Representatives have passed Resolutions foreclosing the FCC from imposing privacy safeguards on Internet Service Providers (“ISPs”).  See https://www.nytimes.com/aponline/2017/03/23/us/politics/ap-us-congress-broadband-privacy-rules.html; https://www.wsj.com/articles/fcc-approves-new-customer-privacy-rules-for-broadband-providers-1477583556.  Advocates on both sides of the issue have offered insights that distort reality, but eventually the court of public opinion will get this matter right: ISPs can mine and monetize subscriber data without offering a dime in compensation, or any sort of enhanced value proposition.  Content providers have to provide something of value for the privilege.

            I marvel how smart people, who really should know better, spout the party line that ISPs and content providers should face symmetrical privacy obligations, or freedoms.  Why?  Advocates for foreclosing FCC consumer protection, frame the matter as a giveaway to villainous Google and Facebook, if content providers have easier access to consumer data than the firms like Verizon and Comcast that carry the content.

            Here’s my newsflash: content providers provider something of value for the privacy they monetize, while carriers have to offer nothing in return.  For a brief period, AT&T offered its subscribers the opportunity to pay a surcharge for enhanced privacy protection.  Data about subscribers location, wants, needs, desires, habits, frequent web site visits, search terms etc. have significant value.  But so far, content providers understand that they have to provide something of value in return for the privilege.  Carriers do need some of this information, e.g., subscriber location, to provide service, but clearly lots of it is marketable without costing the carrier anything by way of a discount, or savings to subscribers.

            Even if we ignore the need for a fair exchange between carrier and consumer, there are major differences between what consumers have to give up to carriers versus what content providers can glean.  Carriers need constant monitoring and managing of factors such as subscriber location and data (bandwidth) requirements to manage networks and maintain high quality of service.  However, these carriers can configure network management into quite intrusive and sellable subscriber surveillance.  For example, content providers have to make do with IP addresses rather than specific location coordinates unless and until subscribers opt into such tracking.  Carriers have that information on an ongoing basis without having to ask for permissible to use and sell it.

            Consumers readily give up privacy expectations and rights in exchange for something of value from content providers.  It’s a voluntary and often mutually beneficial transaction.  On the other hand, carriers do not have to initiate such a transaction, but can incorporate non-negotiable, terms and conditions of carriage.  Acceptance of these “take it, or leave it” provisions constitute a pre-condition for the “right” to become a subscriber. 

            Eventually the court of public opinion will see the unfairness in having to abandon most privacy expectations for the “privilege” of subscribing to something that has become a fundamental—dare I say public utility—aspect of life.  One might have reluctance to give up the information, communications and entertainment (“ICE”) services of Google and Facebook, but who wants to abandon tetherless, lifeline access to the real and virtual world via handsets?

            Lastly, defenders of the privacy takeaway seek to assure the public that adequate safeguards remain in place.  Of course, the FCC can apply telecommunications carrier safeguards, e.g., Section 222 of the Communications Act, but only if it the Commission does not re-reclassify broadband as an information service. Does this imply that the New FCC will not remedy Old FCC overreach?