The FCC’s New Subtractive Privacy Policy

Less is not more. That’s real “common sense.”

When one’s actions demonstrably create a worse rather than better outcome net-net, like the FCC’s new Title II ISP privacy policy does, others would justifiably consider it a mistake.

While the FCC obviously complied with President Obama’s call for regulating broadband as a Title II utility, the FCC obviously ignored President Obama’s 2011 call  for a 21st century regulatory system, where he said we are “making it our mission to root out regulations that conflict, that are not worth the cost, or are just plain dumb.”

Let’s consider how the FCC’s new privacy policy fails this President Obama stated standard for “modern” regulation.

When the FCC reclassified broadband to be a Title II telephone utility last year in its Open Internet Order, the FCC trumpeted one of the great net benefits would be increased consumer privacy protection.

Well over a year later, the FCC is just getting around to proposing these new Title II privacy protections, and the evidence shows consumers’ privacy protection is worse off with the FCC’s Open Internet Order.

In their self-serving lust for Title II authority, the FCC cavalierly left American consumers with no ISP privacy protection, i.e. no FTC privacy protection and no “modern” FCC privacy protection. What! How could that nonsensical outcome happen?  

When the FCC reclassified broadband as a telephone utility, the FCC willfully triggered the Title II FTC exemption which means that ISPs were not subject to FTC authority, and the FCC made clear that they understood they had to modernize the Title II section 222 CPNI rules because broadband networks are architected completely different than a telephone network and create different list of potential info that could be considered “proprietary.”

So American ISP consumers have no privacy protection now and still won’t until the FCC passes final rules over eighteen months after the FCC eliminated their FTC privacy protections.

It is telling that neither the FCC nor the FTC have done anything to notify consumers that they have no Internet service privacy protections at all because of their bureaucratic turf war. That’s because no consumer could understand such “regulations that conflict.”

The FCC also knows that their pending section 222 CPNI protections depend on the FCC’s Open Internet Order being upheld on appeal in the DC Circuit and the Supreme Court, overall and for wireless, which is the most at risk legally. If the FCC order is overturned overall, or in part, some or all ISP consumers would have gone without any ISP privacy protection for naught.    

The FCC also did not do a cost-benefit analysis as the President’s 2011 Executive Order 13563 requires. The FCC was supposed to use “the least burdensome tools for achieving regulatory ends,” and to “adopt a regulation only upon a reasoned determination that its benefits justify its costs.” Simply, there is no cost-benefit analysis that these conflicting regulations “are worth the cost.”

One of the biggest problems with these ISP privacy rules is that are based on a “just plain dumb” FCC reclassification legal decision in the FCC’s Open Internet order that ensures that the FCC’s privacy rules arbitrarily can apply to only one half of the traffic an ISP handles.

That’s because at the last minute, and over the best judgment of the FCC’s legal team, the FCC ceded to a petition from Google, which wanted the FCC to legally split the Internet effectively into different two legal halves, upstream communications traffic and downstream communications traffic, where the FCC would be responsible for utility regulation of the upstream communications traffic half of Internet service coming from the consumer to “edge providers” (Google, Facebook, Amazon, etc.), while the FTC apparently would be responsible for  the downstream communications traffic half coming from the edge providers to the consumer.

That’s “just plain dumb” in any analysis.

In short, these FCC ISP privacy regulations are neither additive, nor “common sense” as the FCC claims.

Sadly, they actually are subtractive, in that they violate the President’s regulatory “mission to root out regulations that conflict, that are not worth the cost, or are just plain dumb.”


Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, a research consultancy for Fortune 500 companies, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests.