U.S. Privacy Dealt Major Set-back as Broadband Protections are Overturned by Congress and President Trump

By: Jeff Chester | Apr 3 2017
An explosion of digital surveillance is coming.

President Trump has killed the first real protections for commercial privacy that Americans have online. Phone and cable giants, allied with the GOP Congressional majority, have just voted to overturn the historic consumer-data safeguards adopted last year by the Federal Communications Commission (FCC). AT&T, Comcast, Verizon—the country’s dominant providers of high speed broadband—along with industry and Congressional GOP allies, intensely opposed the new FCC rule. Why? Merely because it gives Americans some say in whether their sensitive information, such as web browsing activity and geo-location, can be used for digital marketing purposes. That’s right. The new FCC safeguard that was tossed into the legislative waste bin merely says that ISPs must first ask for permission before they can take this personal data in order to target us. Such an “opt-in” approach, requiring prior informed consent, is heretical to digital marketers, whose profits depend on using all of our information without ever really having to ask to do so. 

Until the FCC stepped in, it was the Federal Trade Commission (FTC) that served as the primary federal agency handling Internet privacy. But unlike the FCC, which can readily issue regulations to protect the public, the FTC is constrained from doing so. More than three decades ago, the advertising industry successfully lobbied Congress to curb that agency’s rulemaking authority (during a fight over another media issue—whether there should be limits on children’s advertising). Primarily, the FTC can only punish companies that engage in “unfair” or “deceptive” acts—such as lying to customers about how they use or protect our information. But if a company writes a privacy policy that basically provides them with unlimited access to all our data—which is what they do—the FTC is basically powerless to do anything at all. Which is why the phone and cable giants—along with Google and Facebook—prefer the FTC. It provides the illusion of having actual oversight and limits, when really nothing much is possible.

Under the FTC’s watch, Americans have just experienced an unprecedented loss of their privacy. In the last few years, for example, digital marketers have aggressively pushed the boundaries of what information they gather from us and how it can be used. Our offline and online data is now routinely merged, generating “profiles” that connect our street address to the “cookies” and other online identifiers provided by our digital devices. Our precise geo-location is also regularly captured by mobile phones and “apps” that stealthily send our whereabouts to online companies and retail stores. Massive one-stop data broker “clouds” have emerged that provide reams of information, including about our finances, health, political interests, ethnicity—sold to marketers large and small. Our data “profiles”—digital dossiers—have become invaluable corporate assets that are bought and sold in milliseconds by powerful computers scattered across the globe, our identities traded for profit, as if they are just another commodity. Ongoing advances in how data are analyzed and used—so called “Big Data”—is ushering in even more ways companies can more precisely determine who we are, what we do, where we go, and how we should be treated.

The leading phone and cable broadband ISPs have made major investments in tapping into the latest “Big Data” techniques. For example, Verizon recently introduced “Smartplay,” which helps deliver “smarter advertising” by creating what it calls “individual viewer personas that capture viewing history, account profile details and other valuable data….” Comcast Labs employs “Big Data research teams” that have expertise in “machine learning algorithms, forecasting models, intelligent image and video search, automated scene analysis, voice biometrics, recommender systems, personalization, and deep metadata.” AT&T is relying on its “Consumer Insights Platform” team to turn “big data into big insights….” ISPs also partner with leading data providers, such as Acxiom and Oracle, to enhance the robust details they already have about their broadband and video service subscribers. The big ISPs have also been on a shopping spree, acquiring companies that further their digital data advertising clout. Verizon acquired AOL and is now in the process of buying Yahoo; AT&T bought the leading satellite TV company, DirecTV, in part because of its digital ad capabilities; it now wants to fold Time Warner into its empire. Comcast has swallowed up ad-tech companies such as Visible World, FreeWheel, and StickyAds (and its NBC subsidiary has also embarked on its own formidable data-driven ad initiative).

It is precisely because ISPs provide us access to residential broadband or wireless networks that they have a unique window into our lives. While Google and Facebook have their own far-reaching capabilities, they are primarily ad-supported marketing companies. When we pay a (hefty) monthly subscriber fee for Internet access, we should not also be exposed to having our Internet provider capture every bit of information it can, let alone tie that data together with what we do when we use our mobile and gaming devices or watch TV. The FCC’s new privacy rule builds on the agency’s network neutrality policy requiring that companies providing access to the Internet must operate in a fair and nondiscriminatory manner. Long-standing safeguards for protecting the privacy of our voice conversations over the telephone network have been brought into the 21st century—and now it’s also our broadband communications that must be respected. (Network neutrality is also under threat of elimination by the Trump FCC.)

The ISPs and ad industry lobbyists disingenuously claim that having the FTC protect consumer privacy for all Internet companies, including ISPs and data giants like Google, is the most effective approach. It would be so, perhaps, if the FTC had any real clout. Many of the companies and trade groups urging that the FTC replace the FCC as a privacy regulator have lobbied against giving the trade commission actual authority to do so. They cynically know that turning over our broadband privacy to the FTC will mean business as usual—more of our offline and online data endlessly flowing into sophisticated databases that provide advertisers and other commercial entities (and perhaps government) detailed actionable blueprints of our lives. It will also mean that the only real potential privacy protection Americans have had to make their own mind up about whom to share data with and for what purpose will be lost.

The ISPs, data-marketing companies, and their supporters are also fighting against the privacy rule because they know we are also on the eve of a new era—the Internet of Things—that will generate even more personal information about us. In today’s digital era, data is power.  And that power should be in the hands of the people—not those that wish to financially and politically benefit by harvesting our information.

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President Trump has killed any hope that Americans would enjoy basic privacy protections online. By signing the bill, Mr. Trump has allied himself with the telecommunications and digital media giants who seek to profit from every detail of our lives. This is a betrayal of the American people and an insult to our democracy. All that the FCC safeguard did was to require cable and phone companies to ask for permission before they could profit from a person’s most sensitive information—including that individual’s web browsing, geo-location, financial details and data on children. President Trump helped the special interests and abandoned American families.

Mr. Trump directly benefited from the absence of any federal privacy law or rule that protects having our information easily made available to commercial interests. His senior counselor Steve Bannon has been paid by and has investments in data-marketing firm Cambridge Analytica, which helped the Trump campaign. Mr. Bannon would have understood that the new federal privacy protections would enable the public to restrict the flow of commercial data going to political campaigns. We find this potential conflict of interest troubling, and it requires further scrutiny. (Kellyanne Conway was also a Cambridge Analytica consultant.)

While today’s action by the president ends the FCC broadband privacy rule approved last October, we believe the public has also won something significant. For the first time, millions of Americans have been informed that they have little or no privacy on the Internet and when they use their mobile devices. Moreover, we have assembled one of the largest public-interest coalitions ever to advance consumer privacy protections. Many policymakers—on both sides of the aisle—have declared themselves as advocates for stronger protections. We will be back. But today, President Trump has given America a digital black eye before the world—a world in which most advanced nations understand that personal privacy is a fundamental democratic right.    
 

- Jeff Chester is executive director of the Center for Digital Democracy, a Washington-DC-based consumer digital rights group. 

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