FTC Privacy Framework Defended During ITIF Panel Discussion
Consumers should have the option to opt out of having their data shared by their ISPs or other companies, but data sharing is in general a good thing, Doug Brake, telecom policy analyst at the Information Technology and Innovation Foundation, said during an ITIF panel discussion Tuesday. FCC Chairman Tom Wheeler was expected to circulate ISP privacy rules Thursday (see 1610040080). Sharing data can promote innovation and productivity, Brake said. “It’s better to encourage greater sharing.”
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Consumers care more about some kinds of data than others, said Neil Chilson, aide to FTC Commissioner Maureen Ohlhausen. “There’s more uniform privacy preference for sensitive data, such as health information, financial information, information about children,” he said. “Those are areas consumers generally want to be asked before that data is used for a purpose that they didn’t anticipate.” Consumers disagree broadly on nonsensitive data, Chilson said. “Some people really care about that, some people don’t care,” he said. “The vast majority of people don’t care as much.”
Nancy Libin, privacy lawyer at Jenner & Block, said the FTC has always focused on the nature of the data itself, not the company collecting the data. “The evolution of the internet shows that this approach has been fundamentally sound and has worked well,” she said. “It has protected consumers while allowing the internet to remain an open and dynamic marketplace.” Libin was formerly DOJ chief privacy and civil liberties officer.
“The FCC has taken on a lot this year” and the privacy rulemaking only added to its workload, said Nicol Turner-Lee, vice president at the Multicultural Media, Telecom and Internet Council. ISPs collect less data “than your social media is collecting about you on every occasion,” she said.
As a group focused on minority issues, MMTC believes FCC time spent on ISP privacy could have been better spent elsewhere, Turner-Lee said. The FCC could have looked instead at “big data discrimination, predictive analytics, data profiling,” she said.
Panelists touched briefly on a recent 9th U.S. Circuit Court of Appeals decision that the FTC doesn’t have the authority to regulate common carriers or any of their activities (see 1608290032). Brake said initial concern over the case was “overblown.” The case is “something of a blip on the radar,” he said. “It will get corrected and I think there’s a number of ways that it will get corrected.” FTC Chairwoman Edith Ramirez said last week her agency will seek an en banc review of the case, against AT&T Mobility (see 1609270033). “This is not cause for great alarm,” Brake said.
The decision “raises a bunch of concerns” for the FTC, not just on privacy, Chilson said. “It does mean that there will be companies who are bad actors who will raise this defense and make it harder for the FTC to bring cases.”
“The court suggested some limiting principal, but it’s not clear what that means, what they meant by that,” Libin said. The issue is ripe for rehearing or clarification in the courts, she said. “I don’t think this is where things will stand.” Turner-Lee predicted Congress could engage on the common-carrier exemption.