Antitrust Law Daily Wrap Up, PRIVACY NEWS: Brill advocates privacy and security rules for Internet service providers, (Dec 18, 2015)

By Edward L. Puzzo, J.D.

Internet service providers (ISPs) should operate under specialized privacy and security rules, according to FTC Commissioner Julie Brill. In her keynote address at the Hogan Lovells Winnik International Telecoms & Internet Forum, on December 16, Brill discussed the privacy and security issues raised in the wake of this year's FCC Open Internet Order.

The Federal Communications Commission's Open Internet Order, issued in February 2015, reclassified broadband ISPs as "common carriers." The main goal of this order was net neutrality, but it also has privacy and data security implications. The FTC retains its jurisdiction over advertisers, publishers, data brokers and other actors whose activities can raise privacy and security concerns.

The FTC and FCC have long had a successful working relationship and there is little danger than investigation targets will be "double-teamed," said Brill. The rationale for dual FTC and FCC jurisdiction over common carriers is strong. The FTC has the power to obtain restitution for consumers who are victims of deceptive practices, while the FCC has broad civil penalty authority to deter companies from repeating misbehavior.

ISPs provide the major gateways through which our online personal and professional lives flow, Brill stated. The metadata produced by these interactions—such as the IP addresses to which you connect and the time at which the connection occurs—can imply an intimate portrait of interests and habits, health status, financial status, reading and music preferences, the size of a household, and use of Internet-connected devices. Consumers have little choice if they dislike their ISP's data privacy practices, since they have a limited choice of high-speed providers.

The sensitive information that ISPs collect can be used for the ISP's own marketing and targeting purposes, and also can be sold to third parties. The ad networks and data brokers that track and profile consumers are largely hidden behind the scenes and are outside what many consumers expect from their ISPs.

For these reasons, the FCC should develop privacy rules specifically for ISPs, related to the disclosure and use of personal data, Brill stated. The voluminous data gathered by ISPs also increase the risk that hackers could target it, so ISPs must also be accountable for the security of this data, she concluded.

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