For many years, the Federal Trade Commission has protected Americans on the internet with clear standards and strong enforcement against any unfair or deceptive practices online. The FTC is the lead federal consumer protection agency and has been a strong cop on the beat for our privacy. But in a classic case of the “law of unintended consequences,” the FTC had the jurisdictional rug pulled from under its feet for a small portion of the internet — broadband providers — due to legal changes contained in the Open Internet rules passed last year.
As a result, the Federal Communications Commission — which regulates telecommunications — is now eager to put their footprint in this space by knitting a patchwork set of rules that would apply narrowly to broadband companies while exempting everyone else. In fact, the rules under consideration at the FCC would be a huge step backwards for consumers — confusing consumers and increasing the risk of abusive or discriminatory use of our data online.
And this is particularly dangerous for people of color who must be vigilant to ensure that the discrimination and redlining so common in the “brick and mortar” world does not infect the internet or deny our communities of equal opportunities online. Civil Rights leaders have warned for years of the risk that “Big Data” algorithms and online profiling could send communities of color to the back of the digital bus and lead to discrimination in health, education, employment or other vital aspects of our lives online.
Yet dangerously, the proposed FCC rules appear cavalierly unconcerned with these risks, and in fact would make them worse. The biggest problem is that, unlike the straightforward, understandable approach to online privacy that the FTC has used for years, the new FCC proposal would create an irrational patchwork with illogically heightened requirements for broadband providers.
It is simply not realistic to expect consumers to understand multiple different approaches to their privacy or to figure out how their data is being used when the rules change for different internet companies they deal with. The federal government is supposed to be making things comprehensible for consumers, not sending them through a gauntlet.
Mass consumer confusion created by government bureaucrats won’t protect privacy; it will make consumers simply give up — another damning case of the law of unintended consequences where rules intended to give more protection gum up the works so badly that they end up offering less. The sophistry from which all this confusion and frustration will flow is the false notion that broadband providers pose a special risk to privacy and need a different set of rules.
In fact, extensive research shows that broadband providers have no unique or heightened access to consumer data that would justify different rules. Instead the opposite seems true. Who has more sensitive information about you — the banking, health, and social media companies you have accounts with or the broadband company that simply moves data around the web? This is particularly true as data encryption becomes the norm. By the end of this year 70 percent of internet data will be encrypted and completely unreadable by broadband companies that carry it. Websites and applications like Facebook, Google, and Amazon on the other hand have free rein because they are “inside” the encryption wall and want to know what you are doing and saying to answer your searches or sell you the right products.
Broadband providers have less reach for other reasons. They offer only a narrow, geographically limited service, while the website, application, and social media companies are with us everywhere we go, including at work, home, or on our mobile phones, our broadband provider is stuck in just one place and only “touches” a small amount of our data.
Instead of an inconsistent patchwork based on false assumptions and a misreading of the privacy threat, the FCC can and should step back and put consumers ahead of this jurisdictional land grab and learn from the success of the FTC approach that puts consumers in the driver’s seat rather than in a maze. And that has the sensitivity and flexibility to identify and weed out more subtle forms of data-driven discrimination online that communities of color are in the best position to spot.
Protecting consumer privacy online is challenging under any circumstances — the FCC should stand down from this dangerous attempt to make it even more confusing and complex.
Amy Hinojosa is the President and CEO of MANA, A National Latina Organization, the oldest and largest Latina membership organization in the United States.