Like Braden, I also filed comments on the FCC's inquiry--written by CDT--about what, if anything, the FCC should say about online privacy in the National Broadband Plan Congress assigned the agency to write in the (so-called) "Recovery Act" last year. My comments are available here and are embedded below. Over 20 parties filed comments, available here. My argument in brief is as follows:
To the extent consumer anxiety about online privacy is, as many claim, actually discouraging some Americans from fully utilizing broadband, the FCC could indeed recommend that Congress take action on online privacy--even though the FCC has no jurisdiction to regulate online privacy itself (beyond the limited CPNI rules it has already imposed on the communications services it licenses).
But when Congress charged the FCC with drafting a plan for promoting broadband adoption, it set specific goals: The FCC may only recommend that Congress enact policies the agency concludes on the basis of real data will, on net, help achieve "affordability" and "maximum utilization" of broadband.
The quality and quantity of online services depends on the ability of service providers to collect and use data about web browsing habits to analyze site use, personalize content, tailor advertising, and measure its effectiveness.
So imposing additional regulations on the private sector comes with real costs to users and it's far from clear that such regulations would, on the whole, promote broadband adoption.
The Commission simply doesn't have the data to evaluate this trade-off,, nor the time to collect it (as the FTC is trying to do) since the National Broadband Plan is due to Congress in a matter of weeks.
But no such trade-offs exist with regards to government access to consumer data, which creates far more demonstrable and serious consumer harms. So the Commission should limit its legislative recommendations on privacy to endorsing enhanced limitations on government access, such as CDT has proposed.
The Commission should be particularly wary of opinion polls as evidence of consumer expectations because they cannot tell us about the trade-offs inherent in the real world.
The FTC's comments, signed by Bureau of Consumer Protection David Vladeck summarize the FTC's Exploring Privacy Roundtables, noting a wide diversity of views on consumer privacy expectations. Given Vladeck's well-known support for increased privacy regulation, which Adam and I recently discussed in detail, the letter is relatively balanced--noting both that:
"Many Commenters and roundtable participants noted that consumers are concerned about the extent to which companies may be collecting and using consumer information without their knowledge or consent" and also that
"Others observed that consumer expectations are difficult to measure and may not adequately account for services or benefits made possible by information collection and use."
The latter point was made eloquently by Adam Thierer at the December 7 Roundtable, echoing my earlier paper on privacy surveys. Given the intensity of this debate and the need for much more data, there's just no basis for the FCC to include anything in the National Broadband Plan about the need for more private sector regulations or what they should look like.
I'll have more to say about this when I've had a chance to read all the other comments in this important proceeding. For now, I recommend Braden's and those filed by the Interactive Advertising Bureau about the benefits of self-regulation over preemptive government intervention.