Ad Industry Wants New FCC Broadband Privacy Rules Gutted Because, Uh, Free Speech!

Say That Again

from the helpless-little-daisies dept

We’ve noted repeatedly how Trump’s incoming telecom advisors have made it very clear they not only want to gut net neutrality, but defund and defang the FCC. That means rolling back all manner of other recent FCC policies, like the agency’s recently approved broadband privacy rules. While ISPs and advertisers threw a collective hissy fit about the rules, they really were relatively fundamental; simply requiring that ISPs not only make it clear what’s being collected and who it’s being sold to, but requiring they provide working opt-out tools to broadband subscribers.

ISPs and the advertising and marketing industry are already getting a running start on rolling back these new privacy rules. In a joint filing by all of the major advertising lobbying and trade associations, the advertising industry this week was quick to submit a petition to the FCC (pdf) claiming that the new rules aren’t necessary because the marketing sector already adheres to a “self-regulatory” regime that delivers all the transparency, choice and benefits that consumers could possibly handle:

“This ecosystem has functioned well for years under an enforceable self-regulatory framework developed by the Digital Advertising Alliance (?DAA?), which is broadly supported by industry and widely recognized as a highly credible and effective privacy self-regulatory program that offers consumers transparency about online data collection and a way to control the use of their online data by DAA members while allowing data-driven innovation to flourish. The DAA has been widely successful, with hundreds of companies and thousands of brands participating in the program, over 75 million unique visitors to its digital properties, reaching 35 countries and translated into 26 languages.”

And while it’s certainly nice that the advertising agency has translated its entirely voluntary privacy practices into so many languages, that’s not really relevant to what the FCC was trying to accomplish with the rules. The FCC imposed rules specifically thanks to the lack of competition in the broadband last mile, a lack of competition that lets ISPs and advertisers impose draconian new consumer surveillance policies the consumer can’t vote to avoid with their wallet. The FCC was particularly nudged to action by the discovery that Verizon and its ad partners were covertly modifying user packets to track users around the internet.

It took two years for security researchers to even discover what Verizon and its marketing partners were up to. It took another six months of heavy public shaming before Verizon was even willing to provide working opt-out tools. At no point did industry, or any of its self-regulatory apparatuses, stop and think they’d taken things a bit too far, which is why the FCC, agree or not, felt it was necessary to lend consumers a hand. The FCC was also concerned about a growing push by some ISPs to make opting out of data collection a pricey, luxury option for consumers, “self-regulatory safeguards” be damned.

At the thrust of the ad and marketing industry’s formal opposition to the FCC’s rules is an old favorite; the claim that protecting consumer privacy is somehow a violation of the marketing industry’s free speech rights:

“The Commission did this in a manner that unreasonably exceeds its statutory mandate by restricting a substantial amount of protected free speech counter to the First Amendment, and using a process that did not allow adequate notice and comment from interested parties.”

Of course, if you tracked the FCC’s privacy rules comment period, or the public debate over do not track, the idea that anyone has ever silenced the marketing and advertising industry is hysterical. Most, of course, realize that the debate over consumer broadband privacy protections has absolutely nothing to do with free speech (a claim ISPs also used to fight net neutrality), and everything to do with the billions that are lost when you have empowered, informed, and engaged consumers with the tools to protect their privacy and a few sensible privacy protections at their back.

Again though, this may all be water under the broader, privacy bridge. If Trump’s top three telecom advisors do what they’ve long said they want to do, the new FCC will look to roll back the FCC’s newfound Title II authority, and by proxy both its net neutrality and privacy rules (which rely on the new classification of ISPs as common carriers). And as we’ve noted previously, to minimize activist backlash this will likely come in the form of a new update to the Telecom Act — one that breathessly professes to protect net neutrality and privacy, yet is intentionally written to do the exact opposite.

Filed Under: broadband, fcc, first amendment, free speech, privacy