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?
