Privacy Rules

In the soundbite era of social media, it is easy to overlook the nuances of a given policy. Tom Cohen of Kelley Drye provides his seasoned perspective on this week’s vote by Congress to overturn the December 2016 FCC rules governing customer privacy by broadband ISPs. As he points out, these rules were an extension of the FCC’s reclassification of ISPs as Title II carriers (e.g. the same rules that defined telephone companies).

He explains that 2015 reclassification  of broadband ISPs has caused some unintended consequences, as evidenced by a court case last summer, which, as TechFreedom’s president Bernia Szoka suggested, could lead to privacy gaps between jurisdiction of the FCC and the FTC. Cohen suggests that the privacy rules need to be integrated across providers (whether ISP or edge) to make it easy for the consumer to understand what her rights are.¹

An even larger privacy issue for consumers are the dealings of bad actors who steal consumers’ information, as well as use telecom networks for nefarious activities. Just this week, the FCC issued a warning to consumers not to answer their phone, if they don’t recognize the number. Cohen warns that cybersecurity is a never-ending threat that requires an ongoing team effort across industry and government to thwart this criminal behavior.

¹Cohen also implies that Congress has an opportunity to streamline the regulatory/law-enforcement process with regards to privacy. Remarks made in 2012 by then FTC Commissioner Rosch, argued that there might be an opportunity to streamline the often overlapping roles of the FCC and FTC, “If we are concerned about developing a consistent, unified vision of our digital future, it may make more sense to vest jurisdiction over these matters to a single expert agency.”

Rosch also expressed concern that the FCC would be more vulnerable to political pressure to regulate in a certain way when he said, “Nevertheless, I think there is less independence from the Executive branch when an agency is setting regulatory policy, as opposed to bringing cases, because it may be getting its marching orders, policy-wise, from the White House. “

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