Why Title II Net Neutrality Directly Conflicts with Consumer Privacy

At best the notions of net neutrality and consumer privacy are somewhat in tension.

At worst, they are in opposition, and harm consumer privacy as happened when the Wheeler-FCC subordinated the goal of what’s best for consumer privacy to the conflicting and overriding goal of what was best for imposing maximal, Title II net neutrality.

Net neutrality and consumer privacy are in tension because they are very different concepts, priorities, and approaches for the handling of information online.

However, the original tension between the FCC’s first concept of net neutrality and consumer privacy was very limited because the Martin-FCC’s 2005 Internet Policy Statement on net neutrality was an extension of the Powell-FCC’s “Internet Freedoms” concept of net neutrality, and both approaches were consumer-first, i.e. very clearly centered around what consumers could expect from the Internet.

What thrust them into the more opposing concepts that they are today?

It was when net neutrality flipped from being primarily a consumer-centric principle to an edge-provider centric principle defined by Google, Amazon, Facebook and Netflix; and from the enforcement of a general broadband nondiscrimination principle, to the preemptive imposition of “the strongest possible,” specific, utility rate regulation framework – i.e. Title II of the 1934 Communications Act -- on a competitive industry that had done nothing wrong to warrant it.

Consider how the person who coined the term “net neutrality,” Professor Tim Wu, defined net neutrality in his 2003 paper: “Net Neutrality, Broadband Discrimination.” Then consider how he helped broaden the concept and purpose of net neutrality to encompass overall economic rate regulation of broadband providers in his 2009 paper: “Subsidizing Creativity Through Network Design: Zero Pricing and Net Neutrality.”

While FCC Chairman Wheeler originally did not propose a Title II net neutrality policy in the Open Internet order in 2014, the final Open Internet order in 2015 transformed a narrow net neutrality non-discrimination principle into an entire broadband utility rate regulation regime, that happened to bring with it a privacy framework designed for a single, 1934 closed telephone monopoly network, not the 21st century Internet, comprised of thousands of competitive, open, packet-switched data networks.

So, in sum, how does the Wheeler-FCC’s Title II net neutrality policy in its 2015 Open Internet order directly conflict with consumer privacy?

It unnecessarily created a classic “square-peg, round-hole problem” for itself in using Title II net neutrality to de facto redefine consumer privacy in its image rather than the FTC’s.

The FCC forced a monopoly telephone privacy approach, that assumes that one entity (an ISP) is closed and can totally control the potential dissemination of network information that a consumer chooses to be private, when the FCC knows full well that it can’t possibly ensure that that information be kept private overall, because of the way an “open” and “neutral” Internet works today.

The Wheeler-FCC broadband privacy order deserved to be rescinded by Congress because it was not a fairly-represented, legitimate privacy regulation. The Wheeler-FCC knew it could not ensure that the information that a consumer requested be kept private, could be kept private in the way a consumer expected.

That undeniable fact, means that the FCC’s so called privacy order was not a privacy order at all, but more accurately was a de facto FCC advertising order, that non-neutrally, discriminated in favor of the commercial interests of the incumbent online advertising patrons of Title II net neutrality, Google and Facebook, over the nascent, competitive, online advertising potential of ISPs.

Ironically and tellingly, if the FCC were a company, the Wheeler-FCC broadband privacy order’s public representations that it protects consumer privacy could be found to be a deceptive privacy practice under the FTC’s better and more comprehensive privacy framework that requires public entities to do what they say they will do in their privacy policies.


Scott Cleland served as deputy U.S. coordinator for international communications and information policy in the George H. W. Bush administration. He is president of Precursor LLC, an internetization consultancy for Fortune 500 companies, and chairman of NetCompetition, a pro-competition e-forum supported by broadband interests.