Internet Privacy: The Emperor’s New Clothes

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Daniel Horowitz Independent Consultant
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To believe some ill-informed rhetoric, and frankly propaganda, last month Congress abandoned the American people by “repealing their Internet privacy” and abandoning them to the ravaging hordes of telecommunication companies. That is complete nonsense.

Congress reversed an ill-conceived highly partisan action taken by the Federal Communication Commission (FCC) in 2015 — one which did absolutely nothing to protect Americans’ privacy. But sadly, various groups, many supported by Google, have launched an all-out “hacktivist” surge against the passed measure.

Separating fact from overblown rhetoric is rarely a job which makes headlines — and certainly won’t in this case when the algorithm choosing the news is controlled by Google and Facebook.

Here is what happened.  For two decades, privacy on the Internet has been policed by the Federal Trade Commission (FTC).  But as part of an effort to push the Internet under yet another Washington bureaucracy — and turn the web into a public utility like your local electric company – the FCC enacted a rulemaking just before the Obama administration turned out the lights. The FCC’s rule affected only telecommunications and cable firms but didn’t restrict any data collection or usage by Google, Facebook, Amazon or any of the other networks which track users’ web history, search requests or page views. That’s why every time you searched for a recipe for grilled salmon, advertising for Amazon Fresh or Blue Apron were immediately displayed on your screen.

Yet, groups which historically have exposed such hypocrisy — the Center for Democracy and Technology, the Electronic Frontier Foundation and others — are choosing to echo Emperor Google’s claim that only the FCC’s “Protecting the Privacy of Customers of Broadband and Other Telecommunications Services” could protect the privacy of the American people.

Sadly, the Emperor has no clothes.

Congress didn’t give away our privacy – they protected it.  First, the rules that supposedly “repealed your privacy” were never in effect.  So nothing changed. Consumers’ privacy online is protected today in the same way as they were last week, last month and last year.

Second, It is the FTC, not the FCC, that has enforced – and will continue to enforce long standing privacy rules ensuring all companies do not improperly collect personal information.  The rules pushed by the FCC were inconsistent with the FTC’s effective approach which has been in place for nearly two decades and remain in place today.

Third, it makes no sense for the FCC to enact draconian “privacy” rules just for Internet Service Providers (ISPs) while allowing the biggest threat to your privacy – a Google search – to remain untouched.

Rather than harmonizing its rulemaking with the privacy standards used by the FTC, the FCC created a new and separate standard for ISPs, different than the rules imposed on any other company that collects the same online consumer data — such as Google and Facebook.   For privacy protections to be effective, they need to apply to any entity that can access online consumers’ information.

The legislation passed by Congress simply returns privacy requirements to the status quo since the flawed FCC rule never went into effect in the first place. According to current FCC Chairman Ajit Pai, the best way to ensure consumer privacy is to “return jurisdiction over broadband providers’ privacy practices to FTC, with its decades of experience and expertise in this area.” That is what Congress did.

If Google or any of the companies weeping crocodile tears over this legislation truly want to advocate for consumer privacy, they should simply support the Federal Trade Commission (FTC) and FCC as they move forward to develop a comprehensive privacy framework.

Frankly, we should all support this joint approach. Any actions taken by the FTC will affect all services, including search histories, camera metadata or GPS information currently gathered by mobile applications. Only by supporting such a joint action by the FCC and the FTC can we hope to obtain some level of digital privacy.

Daniel Horowitz is an independent consultant specializing in public policy strategy, coalition building and development. He previously has served as staff in the U.S. House and Senate and as the presidential appointee in charge of policy at the U.S. Small Business Administration.