from the first-do-no-harm dept
We noted the other day how our shiny newly proposed federal privacy bill (as written now) includes a massive gift to US telecom monopolies. It effectively strips away huge swaths of FCC authority over telecom giants, shoveling it over to an FTC that often lacks the resources or expertise to police telecom.
Because “big tech” is all that matters and “big telecom” policy is so very unsexy right now, the press literally couldn’t be bothered to cover this small wrinkle, at all. Well, except for Tonya Riley at Cyberscoop, who spoke to numerous consumer groups who have been raising alarm bells for weeks, noting that the privacy law could actually weaken consumer privacy protection as it pertains to telecom:
“The problem with the Federal Trade Commission is it has fewer tools that it can use to enforce the rule and it has a lot more ground to cover,” said Harold Feld, senior vice president at Public Knowledge, a nonprofit public interest group that broadly supports ADPPA. “It’s basically the difference between going to your regular family doctor versus a cancer specialist. Your regular family doctor may be the best family doctor, but he can’t treat your cancer. For that you need to go to a specialist.”
In conversations with numerous consumer advocates and experts in recent weeks, I’ve noticed a weird tension going on both inside and between many consumer groups because of this. Many groups don’t want anything to undermine the nation’s first chance at a real privacy law, so they’re either reticent to mention it at all, or don’t want their employees making too much noise about it.
As a result you’ve got a mish mash of consumer advocates swimming upstream a bit, like Barbara Van Schewick at Stanford, some folks at the EFF, and Harold Feld. Folks who note that this could have a profound impact on FCC authority moving forward, and in the short term could scuttle investigations like the FCC’s recently announced (and painfully late) inquiry into wireless carrier location data:
“If the law is passed, ongoing FCC regulatory actions against industry privacy practices would no longer have legal standing. That includes an investigation launched last month into what data the top 15 mobile providers in the U.S. collect and how they use it after. Companies under investigation include AT&T, T-Mobile, Verizon and Google. The FCC requested a response by Aug 3. The agency in 2020 proposed $208 million in fines against several major telecommunications companies for selling customer location information, including to bounty hunters. The fines are still pending.
That alone could net the telecom sector hundreds of millions of dollars, well worth any lobbying bill. Longer term, the windfall for telecom would be incalculable.
Telecom lobbyists, hand in hand with the GOP, have worked tirelessly for years to turn the nation’s top telecom regulator into a lobotomized carbon cutout. One that talks a good game about stuff like the “digital divide” and consumer welfare, but lacks any real authority to hold the nation’s extremely unpopular telecom monopolies (AT&T, Verizon, Comcast, Charter) accountable for much of anything.
In the 2000s, the push to “deregulate” defanged much of the FCC’s authority. In 2016, telecom and the GOP managed to kill some modest privacy rules the FCC was considering before they could even go into effect. In 2017, they used corpses and a mountain of bullshit to kill net neutrality, further roll back the FCC’s consumer protection authority, and block even states from protecting broadband consumers.
The goal throughout most of this was to defang the FCC and shift oversight over to the FTC, an agency with more limited authority and less expertise on the nuances of telecom policy. An agency responsible for everything from policing bleach label accuracy to automotive warranty scams. An agency we routinely, painfully underfund and understaff.
It’s not like the FTC has zero understanding of the issues here (see their excellent recent report showcasing how telecom often knows way more about you than even big tech does). But they’re simply not going to do as good of a job as the FCC, and telecom lawyers and lobbyists know it. And with the FCC sidelined, all lobbying resources can be fixated on further undermining the FTC further.
So this is all important stuff, but it seems there’s a very good chance that it all gets kicked into the corner and thrown under a tarp, sacrificed for the sake of having our first federal privacy law. In large part because the policy climate in DC is to hyperventilate myopically about “big tech,” while forgetting that big telecom — which is every bit as bad if not worse on these issues — even exists.