Insight

FCC Stays ISP Privacy and Cybersecurity Rules in Favor of FTC Approach to Privacy Regulation

Attorney Brief: FCC Stays ISP Privacy
AJ

Aaron George and Laura Jehl

March 27, 2017 01:27 PM

Last October, in a vote split along party lines, the Federal Communications Commission (FCC) under then-chairman Tom Wheeler approved a new regulatory regime staking the FCC’s claim to aggressive privacy and cybersecurity regulation of Internet service providers (ISPs). The privacy and cybersecurity rules followed the FCC’s 2015 decision in the Open Internet Order (known as net neutrality) to classify broadband Internet access service as a telecommunications service under Title II of the Communications Act.

One effect of the FCC’s 2015 Open Internet Order was to remove the Federal Trade Commission’s (FTC) oversight of ISPs by classifying them as common carriers exempted from Section 5 of the FTC Act. The FCC’s new privacy regime thus sought to fill the privacy gap left by the agency’s classification decision, but the FCC’s privacy rules went far beyond the guidelines established by the FTC. The FCC’s rules would firmly establish the FCC as the toughest privacy regulator in the Internet ecosystem by imposing significantly more onerous and restrictive requirements for use and collection of consumer data on ISPs than the FTC imposed on their non-ISP competitors who also collect, use, and share consumer data.

The FCC’s privacy rules share some characteristics with the FTC’s longstanding regulation in this space, including requiring fixed ISPs and mobile data carriers that offer broadband services to obtain affirmative opt-in consent from consumers prior to using, sharing, or selling sensitive information. The FCC’s definition of sensitive information, however, is far more expansive than the FTC’s definition and includes geolocation information, web browsing, and app usage history in addition to the health and financial information considered sensitive by the FTC. Under the FCC’s rules, consumers would be entitled to opt out and prevent ISPs from using and sharing on sensitive individually identifiable customer information as well. The FCC rules also require ISPs to provide customers with information about their collection, use, and sharing of consumer data to comply with additional protocols, protect consumer information, and adhere to new notification protocols in the event of a data breach that includes consumer information.

The FCC’s rules are on the books now, with the substantive requirements scheduled to take effect in stages over the course of 2017. Several parties have filed petitions for reconsideration that are currently pending before the agency.

Following the change in administration and the ascendancy of new FCC chairman, Ajit Pai, the status of the FCC’s new privacy regime (and the agency’s decision to classify ISPs as common carriers under Title II) is in question. On March 1, 2017, the FCC entered an interim stay of the new rules related to data security, which were set to take effect on March 2, 2017, pending the agency’s resolution of the petitions for reconsideration. The FCC did not stay other aspects of the new rules, which have not yet taken effect. The same day, Chairman Pai and acting FTC Chairman Maureen Ohlhausen released a joint statement announcing their belief that the FTC should be restored as the privacy regulator for ISPs (which would require reclassifying ISPs as non-common carriers) and that, in the meantime, the FCC’s privacy rules should be harmonized with the FTC’s standards applicable to other companies in the Internet ecosystem.

It remains to be seen whether and how the FCC ultimately will revise its privacy and cybersecurity rules to align with the FTC’s standards. To the extent it is able to do so, the FCC’s approach could prove a useful template for other agencies seeking to harmonize their privacy and cybersecurity regulations with the FTC’s standards. The FCC’s approach also could serve as a valuable compass for other industries hoping for clear and uniform privacy and cybersecurity requirements across their various federal regulators.

Trending Articles

The Best Lawyers in Spain™ 2023


by Best Lawyers

Announcing Spain's recognized lawyers for 2023.

Flag of Spain

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

The Best Lawyers in Chile™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms in Chile.

White star in blue box beside white box with red box on bottom

Thirteen Years of Excellence


by Best Lawyers

For the 13th consecutive year, “Best Law Firms” has awarded the most elite and talented law firms across the country through a thorough and trusted data review process.

Red, white and blue pipes and writing on black background

The Best Lawyers in South Africa™ 2023


by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

The 2023 Best Lawyers in Portugal™


by Best Lawyers

Announcing the elite group of lawyers recognized in Portugal for 2023.

Green and red Portuguese flag

Announcing The Best Lawyers in Peru™ 2023


by Best Lawyers

Honoring our awarded lawyers for 2023 in Peru.

Red and white stripes with green leaf symbol

The Best Lawyers in Spain™ 2022


by Best Lawyers

The results include an elite field of top lawyers and firms.

The Best Lawyers in Spain™ 2022

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

Famous Songs Unprotected by Copyright Could Mean Royalties for Some


by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

IN PARTNERSHIP

Rewriting 𝙃𝙀𝙍𝙨𝙩𝙤𝙧𝙮 One Verdict at a Time


by Justin Smulison

Athea Trial Lawyers was formed only a year ago by several prestigious lawyers seeking justice for their clients, and together they are making history.

Six female lawyers sitting in office

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Announcing the 2023 The Best Lawyers in Canada Honorees


by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Announcing the 2022 "Best Law Firms" Rankings


by Best Lawyers

The 2022 “Best Law Firms” publication includes all “Law Firm of the Year” recipients, national and metro Tier 1 ranked firms and editorial from thought leaders in the legal industry.

The 2022 Best Law Firms Awards

Strength in Numbers: When Partnering Up May Be Best in Whistleblower Litigation


by Justin Smulison

Whistleblower claims make headlines when they result in multimillion-dollar settlements. But the journey to the courtroom is characterized by complexity and requires time and resources. Bienert Katzman Littrell Williams partner and The Best Lawyers in America awardee Michael R. Williams discusses when and why partnerships between counsel will strengthen whistleblower litigation.

A Blue Person in the Middle of White People