On April 3, President Trump signed a joint congressional resolution that repealed the Federal Communications Commission’s (FCC) privacy rules. The debate prompted an unusual amount of misleading sturm-und-drang, including a somewhat disingenuous New York Times op-ed by former FCC Chairman Tom Wheeler. Understanding what’s really at stake requires a deeper exploration of this issue to dispel myths and recognize realities.
There is a common misconception that Congress stripped Americans of their privacy rights. In reality, consumers have the same rights today that they did before the vote. The joint resolution repealed an FCC order that was not scheduled to take effect until later this year. By repealing these rules, Congress preserved the status quo and consumers should see no difference because the law today is the same as it has been since at least 2015.
The purpose of repeal is to restore a level playing field among digital advertisers. Internet-based companies such as Google and Facebook are subject to Federal Trade Commission (FTC) regulation, which requires companies to notify consumers regarding what information is collected and how it is used, and to allow them to “opt out” of such collection efforts. These rules also governed broadband providers until 2015, when the FCC inadvertently stripped the FTC of jurisdiction when it reclassified them as common carriers. The FCC could have corrected this error by simply applying the FTC rules to broadband providers. But it instead applied a stricter opt-in rule, which prohibited broadband providers from using consumer data unless the consumer gives explicit permission. Importantly, under both regimes, consumers ultimately control how their data is used. The only difference is the default rule: the FTC allows Google to use your data unless you say no, while the FCC would have allowed Verizon to use your data only if you say yes. This is a trivial distinction for consumers—but it would have given Google a tremendous advantage in the battle for Internet advertising dollars, a market Google already dominates.
Additionally, it is a common misunderstanding that broadband providers know more about you than companies like Google or Facebook. Broadband providers can’t really “see” all traffic—they can only gather information on one’s activities at home, while Google can capture data anywhere a person is logged into a Google account or using a Google operating system. And Google and Facebook, which collect an estimated two of every three digital advertising dollars, can capture content, while broadband providers generally can only see metadata and traffic flow information.
Consumers uncomfortable with the monetization of their information still have options. All major broadband providers have privacy policies that allow consumers to opt out of data collection. Consumers can also use a virtual private network (VPN) to shield their activities online, though be aware that the most reliable VPN providers are not free.
Ultimately, privacy questions cannot be debated in a vacuum. Consumer information is the lifeblood of the Internet. Our information is routinely collected by many companies, but this is not necessarily problematic. Monetization of consumer data is what helps make Gmail, Facebook, YouTube, and other services free — and might someday bring broadband prices down. We cannot debate the value of potential future privacy rules without considering the consequences such rules might have on the broader Internet ecosystem.