State Attorneys General Urge FCC To Drop ISP Privacy Plan

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The Federal Communications Commission (“FCC” or “Commission”) issued a Notice of Proposed Rulemaking in March of this year to assert the Commission’s regulatory reach over internet service providers (“ISPs”), specifically the manner in which those providers collect and use customer information. Sixteen State Attorneys General, including the Attorney General for the State of Georgia, Sam Olens, are now responding to the proposed rules. The Attorneys General are advising the FCC to drop its ISP plan to spare providers from regulatory confusion and unnecessary burdens.

According to the FCC, the proposed rules are meant to further protect consumers, particularly broadband subscribers, by giving them more control over how their information is used and shared by ISPs. The proposed rules would require providers to obtain “opt-in” consent from consumers before using any of their information for a non-communications-related purpose (i.e., third-party marketing purposes). The FCC assumed authority over ISP customer privacy issues in 2015 when it reclassified ISPs as common carriers. The Commission has emphasized, though, that the proposed rules will not apply to the privacy practices of “edge providers” like Google or Facebook, over which the Federal Trade Commission (“FTC”) has authority.

In their September 9th letter to the FCC, the State Attorneys General argue that the separate (yet overlapping) authorities of the FCC and FTC over ISPs create unnecessary confusion.  According to the letter, “[c]rafting a patchwork of regulations imposes extra burdens on all who seek to protect consumer privacy, forcing them to navigate artificial distinctions before they can determine what rules do or do not apply in a particular circumstance.” In other words, it actually hurts consumers to create regulations over ISPs while exempting big tech companies, and vice versa. The letter explains, “[c]onsumers value their privacy and the security of their personal information, period. They do not differentiate between who has access to their information in the online environment.”

Moreover, the Attorneys General are concerned that the FCC’s rules could preempt state laws, which already “protect consumers’ privacy” on the internet. The letter states, “[i]t is of paramount importance that any federal regulations not impair states’ ability to vigorously protect their citizens.” State laws governing the practices of ISPs, the Attorneys General argue, have “distinct advantages over new prescriptive regulatory approaches.” Rather than create regulations piecemeal, the letter recommends that the FCC “engage with the [FTC] and state attorneys general to determine the most effective path forward to protect consumers and their privacy.”

The FCC is scheduled to address both these concerns at its next open meeting this Thursday, September 29th.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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