FCC, FTC Bosses Pen Misleading Editorial Falsely Claiming The Best Way To Protect Your Privacy Moving Forward... Is To Gut Net Neutrality

from the you're-not-helping dept

As they've long made clear, Trump, FCC boss Ajit Pai, and other net neutrality opponents have every intention of killing net neutrality rules. Of course, given the huge, bipartisan consumer popularity of net neutrality, these folks can't just come out and say they're doing that, lest they incur the wrath of internet users and activists. As such, they've begun laying the groundwork for a misleading argument that attempts to make gutting oversight of the uncompetitive broadband industry -- and killing net neutrality -- sound almost pleasant.

The latest example of this came via an op-ed this week in the Washington Post, jointly written by FCC boss Ajit Pai and FTC boss Maureen Ohlhausen, entitled "No, Republicans didn't just strip away your Internet privacy rights." Of course they did, and there's not any real debate that this is what happened, but this being the post-truth era -- countless individuals labor under the illusion that facts are somehow negotiable. Amusingly, the editorial can't even make it a full sentence without being misleading (read: lying):

"April Fools’ Day came early last week, as professional lobbyists lit a wildfire of misinformation about Congress’s action — signed into law Monday by President Trump — to nullify the Federal Communications Commission’s broadband privacy rules. So as the nation’s chief communications regulator and the nation’s chief privacy enforcer, we want to let the American people know what’s really going on and how we will ensure that consumers’ online privacy is protected."

Of course, 90% of the lobbying at play on this subject came via telecom industry giants like AT&T, Verizon and Comcast, who are spending millions of dollars to reduce oversight of one of the least competitive business segments in American industry. Even Google, one-time consumer-advocate, had lobbied in opposition to the rules (pdf). The mortal sin the rules committed was that they required that consumers opt in (the dirtiest word imaginable in advertising) to having their personal financial and browsing data collected and sold.

It's also worth reminding folks here that the lion's share of consumers, be they Democrat, Republican or Independent, supported the privacy protections and wanted Trump to veto what was seen, quite correctly and uniformly, as an embarrassing example of pay-to-play politics:

So yes, to begin, the only "misinformation" here is originating with Pai and Ohlhausen. The duo proceed to parrot large telecom companies in claiming that people are overreacting because ISPs don't really collect much data about them:

"Let’s set the record straight: First, despite hyperventilating headlines, Internet service providers have never planned to sell your individual browsing history to third parties. That’s simply not how online advertising works. And doing so would violate ISPs’ privacy promises.

Note the continued use of the phrase "individual" by ISPs and the policymakers kneeling in fealty to them. Yes, ISPs don't sell your "individual" browsing histories (yet), but they do collect wholesale clickstream data, DNS records, location data, redirected search entries and countless other metrics -- using a vast array of sophisticated deep packet inspection and other network gear. Some of this data is "anonymized" and sold and some isn't, but to suggest that ISP "privacy promises" (privacy policies written entirely to protect the ISP from legal liability) are some kind of magic protection for consumers is hysterically and patently false.

From there, the pair proceed to parrot the other key talking point ISPs have been pushing over the last year. Namely, that eliminating the FCC privacy rules isn't a big deal because the FTC will rush in to fill the oversight vacuum and protect consumer privacy:

"Second, Congress’s decision last week didn’t remove existing privacy protections; it simply cleared the way for us to work together to reinstate a rational and effective system for protecting consumer privacy. Both of us warned two years ago that the FCC’s party-line vote to strip the Federal Trade Commission of its jurisdiction over Internet broadband providers was a mistake that would weaken Americans’ online privacy."

That's again, patently false. The FCC stepped in only because ISPs were engaged in all manner of bad behavior and the FTC lacked the authority, motivation, or resources to do anything about it. This ranged from ISPs charging users hundreds of additional dollars a year to opt out of data collection, to covertly modifying user wireless packets to track users around the internet without telling anybody. The FCC's rules were specifically tailored to protect consumers from broadband providers that enjoy limited competition, and thereby limited repercussions for bad policy behaviors.

Those that want an open and healthy internet need to understand that this idea that the FTC provides effective oversight of broadband providers is patently false. ISPs aren't lobbying to shift broadband regulatory authority back from the FCC to the FTC because it's fun. They're spending millions of dollars in lobbying to ensure they see less regulatory oversight than ever before. That this return to FTC authority is some kind of panacea is a canard most recently debunked by former FCC boss Tom Wheeler in an interview with Susan Crawford:

"In the Trump administration, people are talking about stripping regulatory power from the FCC, and essentially taking the agency apart (including moving jurisdiction over internet access to the Federal Trade Commission [FTC]). “Modernizing” the FCC is the lingo being used. What’s your thought about that?

It’s a fraud. The FTC doesn’t have rule-making authority. They’ve got enforcement authority and their enforcement authority is whether or not something is unfair or deceptive. And the FTC has to worry about everything from computer chips to bleach labeling. Of course, carriers want [telecom issues] to get lost in that morass. This was the strategy all along.

So it doesn’t surprise me that the Trump transition team — who were with the American Enterprise Institute and basically longtime supporters of this concept — comes in and says, “Oh, we oughta do away with this.” It makes no sense to get rid of an expert agency and to throw these issues to an agency with no rule-making power that has to compete with everything else that’s going on in the economy, and can only deal with unfair or deceptive practices.

Make no mistake: the goal is, again, less oversight of one of the least competitive, and most anti-competitive companies in America. Pai and Ohlhausen, as revolving door regulators are wont to do, go to comic lengths to try and pretend the broadband industry isn't a competitive mess:

"Others argue that ISPs should be treated differently because consumers face a unique lack of choice and competition in the broadband marketplace. But that claim doesn’t hold up to scrutiny either. For example, according to one industry analysis, Google dominates desktop search with an estimated 81 percent market share (and 96 percent of the mobile search market), whereas Verizon, the largest mobile broadband provider, holds only an estimated 35 percent of its market."

That's some lovely, cherry picked bullshit.

Most consumers lack the choice of more than one fixed-line broadband provider, and the looming wave of mergers and acquisitions (supported by both Pai and Ohlhausen) are likely to reduce competition even further. Again, you can choose to not use Gmail, Google search or Facebook. Most people have only one or two broadband providers to choose from, both of which are happily engaged in non-price competition with little to no incentive to behave. This lack of competition -- and the government's unwillingness to address this for fear of stifling AT&T, Comcast, Charter and Verizon campaign contributions -- is what triggered the entire net neutrality and privacy fracas to begin with.

Of course, there's something else the pair intentionally and comically avoid talking about in their treatise. And that's the fact that to gut FCC authority over broadband and shovel it back to an already-overburdened FTC, regulators need to roll back the Title II reclassification of ISPs as common carriers -- and by proxy the nation's net neutrality rules. Pai and Ohlhausen don't even utter the phrase "net neutrality" in their missive, knowing all-too-well that they'd be laughed out of town if they didn't try to hide their real objective under a parade of half-truths and prattle.

But make no mistake, this pretense that we need to shift broadband regulatory oversight back to the FTC because it provides a more "consistent regulatory environment" is a transparently self-serving, telecom industry-concocted canard -- and the opening salvo in what will be the death of net neutrality protections if we don't start paying closer attention.


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  • identicon
    Baron von Robber, 5 Apr 2017 @ 12:01pm

    Ajit Pai, showing us what really it's like babysitting with a real dingo is like.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Apr 2017 @ 12:16pm

    Remove privacy, and there is nothing to protect, and its protection can be perfect.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Apr 2017 @ 1:33pm

      Re: solution?

      Apparently TD strongly feels FCC/FTC are not protecting our privacy.

      Is there some possible solution then to that highlighted problem? (none was mentioned in this very long essay)

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 5 Apr 2017 @ 2:38pm

        Re: Re: solution?

        It's a little late at this point, but keeping the privacy rules that congress just gutted would certainly have helped(assuming a competent FCC anyway).

        Not dumping everything into the lap of another agency who's boss has just signaled that they're not interested in protecting customer privacy would probably help too.

        Or perhaps having the FCC not run by a telecom tool who's idea of 'serving' the public is 'serving' the public to the industry that owns him.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Apr 2017 @ 1:50pm

        Re: Re: solution?

        Well, it's not for me to tell people how to vote, but people should note that in Congress, the Bill in question was voted "aye" by all Republicans, and zero democrats.

        So, you could vote Democrat. I know many people love to say "Both parties are the same." but they're just not. One is a bit of a sellout, the other is a total fucking sellout.

        Alternatively, if you hate Dems, you could get involved in your R primaries, and actually elect responsible, intelligent R Congressmen who care more about the citizens, and less big-money lobbyists.

        Elections have consequences, Pai is the consequence of the Trump victory. The Bill succeeding in Congress is the consequence of a R majority in both houses. And Trump's signature is a consequence of Trump being barely literate enough to scribble it down, as well as sitting in the Oval office.

        But the root cause is mos def not racism. It's economic unease in middle America.

        reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 5 Apr 2017 @ 12:18pm

    "Hmmm...that name looks familiar!"

    Right now I look over the WaPo headlines to check the world didn't end since yesterday, and I saw this bit and recognized the byline as a... name that crops up in Techdirt frequently.

    Well, that can't be good.

    consumers face a unique lack of choice and competition in the broadband marketplace. But that claim doesn’t hold up to scrutiny either.

    My previous residence used Sonic, which just sent them assurance that at lest it would stick to its your internet activity is none of our business privacy policy and not expand into data analysis.

    Meanwhile where I currently live is in a Comcast regional monopoly.

    Doesn't hold up to scrutiny, my ass.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Apr 2017 @ 12:26pm

    If you want to help protect NN you should support groups like ACLU and the Electronic Frontier Foundation and Free Press who are fighting to keep Net Neutrality.

    https://www.aclu.org/

    https://www.eff.org/

    https://www.freepress.net/

    https://www.fightforth efuture.org/

    https://www.publicknowledge.org/

    https://demandprogress.org/

    also you can set them as your charity on https://smile.amazon.com/

    also write to your House Representative and senators

    http://www.house.gov/representatives/find/

    https://www.senate.gov/general/contact_information /senators_cfm.cfm?OrderBy=state

    and the FCC

    https://www.fcc.gov/about/contact

    you can also use this that help you contact your house and congressional reps, its easy to use and cuts down on the transaction costs with writing a letter to your reps.

    https://resistbot.io/

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Apr 2017 @ 12:39pm

    Come now...

    "It's also worth reminding folks here that the lion's share of consumers, be they Democrat, Republican or Independent, supported the privacy protections and wanted Trump to veto what was seen, quite correctly and uniformly, as an embarrassing example of pay-to-play politics:"

    Do you really expect the voters to know their heads from a hole in the ground? They ignorantly believe tons of shit that hollyweird tells them and politicians. How can you expect them know what is going on when they don't even know the constitution they yak about, the laws they scream for or against, or that they constantly trade liberty for pseudo safety and direct tyranny.

    yea, color me unsurprised. saw it coming, see more if it coming and no one is going to do anything but run lip about it and keep voting for the same damn thing next cycle.

    Catch you bitchers on the flip side!

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 5 Apr 2017 @ 12:47pm

    Well that's reassuring

    The latest example of this came via an op-ed this week in the Washington Post, jointly written by FCC boss Ajit Pai and FTC boss Maureen Ohlhausen, entitled "No, Republicans didn't just strip away your Internet privacy rights."

    At this point it's pretty clear that the telecom companies own the FCC for all intents and purposes, and now the boss of the FTC is stepping up to confirm that the telecom companies own them too.

    To those that have said that leaving cracking down on abusive behavior to the FTC would work better than the rules the former FCC boss put in place(and the current one is trying to kill off), that still strike you as a good idea?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Apr 2017 @ 1:04pm

      Re: Well that's reassuring

      This is how it has always been. Wheeler was just an anomaly, a nice one, but still an anomaly and you see how far that joker got, practically nowhere.

      I want the utter and complete destruction of the FCC. This agency has done nothing but serve the industries wishes while suckering citizens into thinking they do anything useful. Agencies need to only do one thing... enforce the laws Congress makes. If we can get back to tying every thing back to congress, we might finally wake up and realize that Congress is the very first diaper to be changed before we can get anywhere!

      reply to this | link to this | view in chronology ]

      • icon
        TruthHurts (profile), 5 Apr 2017 @ 2:49pm

        Re: Re: Well that's reassuring

        No, No, No.

        You do NOT want the destruction of those entities.
        You want the destruction of the strings tying the communications industries to the joints of the FCC/FTC chairman puppets currently being played by the @$$#@75 in charge of those industry giants.

        Once we see the puppets on stage fall to the ground like the spineless marionettes that they are, the audience might, just 'might' wake up and demand their money back from this worst play ever.

        Make America great again? Oust Trump and his phony cronies before they do any more damage.

        reply to this | link to this | view in chronology ]

        • icon
          Derek Kerton (profile), 6 Apr 2017 @ 1:56pm

          Re: Re: Re: Well that's reassuring

          Truthhurts: Agree. But bear in mind that Ajit Pai is not so much a creation of Trump. He would have been the GOP appointed FCC Chair no matter which GOP nominee won the election.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Apr 2017 @ 1:13pm

    let's face it, if there is something that can be said/done that will remove more privacy and freedom from the people and replace it with what the government and security services want, ie, the ability to legally spy on everyone and look inside any and all electronic devices, that is what is gonna be falsely claimed! those claims will then be backed up by Trump because he has no intention of doing anything during his term in office (hopefully only 1 term!) that is of benefit to the ordinary people and everything that will benefit major corporations and his already rich and famous friends!!

    reply to this | link to this | view in chronology ]

  • identicon
    I.T. Guy, 5 Apr 2017 @ 2:14pm

    Nelson: Ha ha!!!

    How's all that greatness working out for ya?

    Are we great yet?

    Can you feel it?

    Sure glad our infrastructure is in great shape so the Pres doesn't have to worry about it. Spend energy on the important issues like this.

    reply to this | link to this | view in chronology ]

  • icon
    TruthHurts (profile), 5 Apr 2017 @ 2:41pm

    Isn't the FCC supposed to crack down on false public statements? (advertising usually)

    "Federal Communications Commission Chairman Ajit Pai and his counterpart at the Federal Trade Commission today argued that strict privacy rules for ISPs aren't necessary in part because the broadband market is more competitive than the search engine market."

    What???

    10+ search engines
    Choices for ISPs in most areas of the country, '1', at most '2'.

    Can we round the FTC and FCC leaders up and prosecute them for making false statements to the government? Not to mention, to the rest of the citizens of this nation?

    reply to this | link to this | view in chronology ]

    • icon
      TruthHurts (profile), 5 Apr 2017 @ 2:45pm

      Re: Isn't the FCC supposed to crack down on false public statements? (advertising usually)

      Too many acronyms, insufficient caffeine... meant FTC for subject... ah well... one would think FCC would want truth in communications as well.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Apr 2017 @ 4:01pm

      Re: Isn't the FCC supposed to crack down on false public statements? (advertising usually)

      Not legally no. It's up to Congress to prosecute contempt and perjury when those testify before it evade or lie. Considering the heads of the FCC & FTC are in the same bed, politically, as the rest of the majority of Congress, and they are telling their own people what they want to hear, it's not going to happen. This is the information echo chamber in full effect with no one with enough power to interrupt it.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Apr 2017 @ 5:05pm

    I don't understand how Pai can get away with saying all the stupid shit that he does and still be qualified for a position of authority. Hopefully the chaos of the Trump investigations will sweep him into the "clearly up to no good" bucket with Michael Flynn and Carter Page.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 5 Apr 2017 @ 7:15pm

    Need to put in a correction

    You spelled his name wrong. It's Ashit Pai.

    You're welcome!

    reply to this | link to this | view in chronology ]

  • identicon
    My_Name_Here, 6 Apr 2017 @ 1:48am

    issue

    Part of the problem here is that the rules you were so fond of from the previous FCC boss were not in fact the rule of law - just agency regulations. The failure of Wheeler to work with congress to get these regulations codified is the real problem.

    The law that was passes was done so in some part to remove power from the FCC. It wasn't about privacy per se, rather about the FCC wildly overstepping it's mandate to be a rule maker rather than a rule applier.

    What should have happened is that this whole discussion should have been had a few years back, and the FCC should have worked with congress to pass a bi-partisan law that protected consumer privacy by law and not only by regulation.

    Wheeler failed. It's pretty simple.

    reply to this | link to this | view in chronology ]

    • identicon
      My_Name_Here, 2 May 2017 @ 9:47pm

      Re: issue

      Looks like the fake messages go pretty far back. Classy of Techdirt to permit the same idiot posting in my name.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Apr 2017 @ 2:42am

    I'm from the UK and I'll admit that I don't have a full understanding of 1st amendment.

    When I see BS like this and other stuff that Pai comes out with I wonder why there isn't some standard that officials should have that would limit their ability to give official statements without the factual evidence to back up their assertions.

    I believe there are limits to what corporations can say in SEC filings so it isn't like there isn't some restricions on 1st amendment rights when making official statements.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Apr 2017 @ 8:01am

    Ajit Pai you are a piece of shit.

    reply to this | link to this | view in chronology ]


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