Antitrust Law Daily Wrap Up, PRIVACY NEWS: FTC Commissioner Brill discusses privacy under the Open Internet Order, (Nov 20, 2015)

By Michael Menzhuber, J.D., LL.M.

Strong consumer privacy and data security protections are key ingredients in today’s data-intensive economy, including the practices of broadband providers, FTC Commissioner Julie Brill stated in November 19 speech at Georgetown’s Institute for Public Representation and Center for Privacy and Technology Symposium on Privacy and Net Neutrality in Washington, D.C.

In her speech entitled “Net Neutrality and Privacy: Challenges and Opportunities,” Brill expressed her support for the Federal Communications Commission’s (FCC) goal of preventing the blocking or degradation of sites and services that consumers want to reach and her belief that the Open Internet Order will help achieve these goals.

Because the reclassification of privacy protection under the Open Internet Order placed residential Internet access services outside of the FTC’s purview, it could become more difficult for the FTC to bring enforcement actions against Internet service providers (ISPs) based on their data practices, Brill noted. However, the Open Internet Order gives the FCC more authority on the “privacy beat.” Additionally, the Open Internet Order presents a rare opportunity to discuss consumer privacy in the context of the relationship between consumers and their broadband providers.

Brill next discussed the reclassification of privacy protections under the Open Internet Order. She noted that, despite being moved out of the enforcement of a narrow, but significant, band of commercial activity, the FTC remains the leading consumer protection and privacy agency. The interests of consumers in ensuring that broadband providers maintain appropriate privacy protections would be served by giving both the FTC and the FCC jurisdiction over common carriage services. According to Brill, this could be accomplished by eliminating the common carrier exemption in Section 5 of the FTC Act.

The FTC and the FCC would work well to ensure that enforcement efforts would be efficient and the two agencies would not “double team” potential targets, in Brill’s view. She explained the rationale for creating dual FTC-FCC jurisdiction over common carriers and discussed why the FCC’s rulemaking authority, and it source in Section 222 of the Communications Act, was an important event for consumer privacy protection.

Brill suggested that the FTC’s privacy policy positions have a lot to offer as the FCC considers what privacy rules for ISPs should look like. In its 2012 Privacy Report, the FTC set out a new framework for privacy rights in the digital age. She further noted that framework has three basic elements: (1) privacy by design; (2) effective transparency; and (3) simplified consumer choice.

With that framework in mind, the Commissioner focused on some of the specific privacy and data security questions that broadband Internet access raises. Brill identified data security as the final area that she would to see “front and center” in the ongoing discussion of privacy under the Open Internet Order. The security of broadband providers’ networks is critical to ensuring that these networks are available for consumers to use at any time or day or night. More novel security issues, in the broadband context, come from the data about consumers that ISPs have, she explained.

Brill stated that, while ISPs are not alone in needing to respect their customers’ privacy and to keep data secure, they play a unique role in the digital ecosystem. She concluded that the conversation about privacy under the Open Internet Order should proceed from a recognition of this unique role, resulting in strong privacy and security protections.

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