Senate Privacy Hearing Will Reveal the “Success” of Google’s Public Advocacy Efforts

by Mike Wendy on June 28, 2011

Tomorrow, the Senate Commerce Committee will hold a hearing on Internet privacy and security.  The reason for the hearing – Congress is currently considering numerous privacy bills, and, with several recent data breaches also occurring, the protection of personal information online has come under greater congressional scrutiny of late.

One notable witness at the hearing will be Austin Schlick – the FCC’s general counsel.  Notable because the FCC is not generally thought to be in the privacy business. That is, until last year’s National Broadband Plan (NBP) came out.  With the plan, the FCC began building its case that an important way to promote broadband is to ensure that networks become more privacy focused and secure.

Companies that rely on maintaining privacy – especially Google – should take note. Schlick’s presence, and the statement made by it, reflects the unintended consequence of urging for more Internet regulation.

Google and its cheerleaders know a little something about this, of course.  For the better part of a decade, Google has done more than just about any company to juice up the “access to knowledge crowd” (like “public interest” lobbying groups Free Press, Public Knowledge, and Media Access Project) and their caterwauls for strict rules on network providers, ostensibly to prevent their “sure-to-be” discriminatory practices on the Internet.

The centerpiece of this push was Net Neutrality regulations, which are limited to ISPs only.

Limited.  Or so Google et al would have thought.

But a funny thing happened on the way to those regulations, which should have given everyone, even Google, a pause. In March 2010, a full nine months before the FCC released its Net Neutrality regulations, the agency issued its NBP, containing this related nugget:

…In analyzing barriers to achieving [ubiquitous broadband penetration and use], a recurring theme emerges around privacy and control of personal data. The current legal landscape for how consumers control their personal data, when applied to the online world, may hold back new innovation and investment in broadband applications and content. These applications and content, in turn, are likely the most effective means to advance many of Congress’s goals for broadband…

To meet those goals, the agency urged, among other suggestions, that:

“Congress, the Federal Trade Commission (FTC) and the FCC should consider clarifying the relationship between users and their online profiles.”  And, “the FCC and FTC should jointly develop principles to require that customers provide informed consent before broadband service providers share certain types of information with third parties.”


Broader Internet regulation is on the way.

To this end, I surmise that Austin Schlick tomorrow will leverage the agency’s job in boosting Net uptake to present the case to Congress that the Net’s further development vitally depends on the FCC to protect online privacy and security.

Perhaps this could have been headed-off at the pass had the FCC blinked and refrained from issuing its Google-pushed, Net Neutrality regulations.  But, that’s not what happened. Sadly, however, I fear the FCC sees this as a regulatory “success story,” which will only embolden it to go further.

I am not alone on this one.  Unlike other of Google’s stable of cheerleaders, the EFF had some prescient insight into last December’s Net Neutrality action.  In their view, the FCC’s rules are undesirable because, among other things, they would…

…[G]ive the FCC pretty much boundless authority to regulate the Internet for whatever it sees fit. And that kind of unrestrained authority makes us nervous about follow-on initiatives… In general, we think arguments that regulating the Internet is “ancillary” to some other regulatory authority that the FCC has been granted just don’t have sufficient limitations to stop bad FCC behavior in the future and create the “Trojan horse” risk we have long warned about.

So, all this said, let me play the role of the Greek Chorus here (because playing Cassandra never seems to work), and offer a couple of closing points (er, lay some blame).

Inarguably, Net Neutrality regulations could not have occurred without the groundwork laid by Google and its patronage of groups like Free Press, Public Knowledge and Media Access Project.  The “sick” environment they helped create – the noise, the distraction, the Internet-is-too-important-to-let-corporations-control-it narrative – played no small role in helping regulators get over the “inconvenient hump” of a healthy Internet, and impose last century regulations on an integral swath of the ecosystem.

It would be crazy to think that these aggressive, near ceaseless, withering entreaties for Internet regulation – if only for network providers – could be corralled just there.  Privacy regulation, which Google and the rest of the industry do not want, is just the next frontier.  And then who knows what will happen after that (certainly not less regulation, though)?

Whether it’s a case of the chickens coming home to roost, or the camel’s nose under the tent, or a Trojan Horse placed inside the village walls – these are all animal activities the Internet industry and consumers could do without.

Mountain View’s initial “success” means we are all lesser-off as a result.

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