Net neutrality vote introduces a new player in the privacy game: The FCC

March 19, 2015

net neutrality rulingThe Federal Trade Commission has recently indicated, in word and deed, that it intends to take an increased role in privacy protection through its Section 5 jurisdiction with regard to unfair or deceptive practices concerning consumers’ privacy. The Securities and Exchange Commission flexed its muscle with a Cyber Security Risk Alert in April of 2014 comprising a sample audit list of inquiries about safeguards for financial and personal data.  Lost in the Net Neutrality debate and proposed regulation of Internet Service Providers (ISP’s) as though they were telephone-company-like utilities is the emergence of yet another federal agency asserting privacy jurisdiction: the Federal Communications Commission (FCC).

By voting to regulate ISP’s in this manner, the FCC has brought these companies under the rubric of Section 222 of the Communications Act. This provision requires utilities under FCC jurisdiction to implement safeguards for consumers’ “proprietary information,” including information that is “made available to the carrier solely by virtue of the carrier-customer relationship.” In other words, the FCC could restrict Internet “carriers” such as Google from reading, by human or algorithm, emails. If you had ever wondered why an ad for, say, The Gap, appeared in a Google sidebar after you had emailed a friend about your plan to buy a pair of jeans at the Gap, a clear answer may be made public if the FCC decides to restrict such practices and take other steps to curtail ISPs’ access to the content of communications on their networks and platforms.

The FCC fully intends to enforce the privacy provisions of Section 222, according to  the Fact Sheet released by the FCC following the Net Neutrality decision (available at http://www.fcc.gov/document/chairman-wheeler-proposes-new-rules-protecting-open-internet) The Fact Sheet also notes that Commission intends to apply Title II, Sections 201 and 202 that proscribe “unjust and unreasonable practices.” That may impact continuation of e-commerce organizations’’ “browse wrap” Terms of Use that disclaim responsibility for security of users’ information, limitations of liability and mandatory arbitration clauses but presume binding agreement merely by using the organizations’ website.

The FCC decision to regulate ISP’s will, no doubt, be challenged and enforcement may not take place for at least a few years, assuming the challenges are unsuccessful. As a result of the FCC’s vote to regulate ISP’s the user experience with email and other communications platforms and websites may be quite different a few years from now.