Landmark ruling establishes a variety of new obligations, but long-term effects remain unclear.

On November 2, 2016, the US Federal Communications Commission (FCC) released an order adopting new privacy rules that will govern how broadband Internet access service (BIAS) providers can collect, use, protect and share data about their subscribers. The 2015 Open Internet Order2 set the stage for these new privacy rules by reclassifying BIAS as a common carrier telecommunications service governed by Title II of the Communications Act. This reclassification had the effect of exempting BIAS providers from the Federal Trade Commission’s (FTC’s) privacy requirements (as the FTC Act prohibits the agency from regulating common carriers), while at the same time subjecting BIAS providers for the first time to Section 222 of the Communications Act, which establishes distinct privacy obligations for common carrier telecommunications services. The rules adopted in the FCC’s Broadband Privacy Order — unless reconsidered by new leadership — will create a new consumer privacy regime for BIAS providers (and other Title II common carriers, including providers of traditional voice services) that will stand in lieu of the FTC’s authority. As expected, these rules do not apply to providers of “edge services” (everything from websites, web-based email and streaming services, to mobile applications and search engines).