Update – FCC Reveals the Slippery Slope of Internet Regulation at Senate Privacy Hearing

by Mike Wendy on July 14, 2011

Update – A couple of weeks ago, I reported that the Senate Commerce Committee was holding a hearing on Internet privacy and security.  One of the interesting witnesses at the hearing was Austin Schlick – the FCC’s general counsel.

Interesting because a little more than a year ago, the FCC began building its case through its National Broadband Plan (NBP) that it ought to be more involved in ensuring Internet privacy.  In the agency’s view, doing so would promote greater broadband deployment and uptake across America.

The regulation of Internet privacy is a hodgepodge undertaking here in America.  According to Mercatus Center’s Adam Thierer, policing has focused on consumer choice, notice and access; industry self-regulation; and targeted FTC and state enforcement tools.

Though the FCC is involved in various aspects of telecommunications and cable service privacy matters, many question the FCC’s role as an Internet privacy policemen because many (myself included) believe that, unlike the regulation of telecommunications or cable services, the FCC lacks the specific congressional authority to regulate the provision of Internet services at all.

Still, the NBP proposed:

…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…

Consequently, the report urged 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.”

Since the NBP was unleashed, the then “current legal landscape” – which ostensibly prohibited the FCC from regulating Internet services – has changed somewhat.   In December of last year, nine months after the NBP came out, the FCC took the dubious step of regulating Internet services by issuing its Net Neutrality regulations.

Once the rules become official (they still await final publication in the Federal Register), they will likely be appealed, leaving the regulation in legal limbo for the time being.  That fact, however, hasn’t stopped guys like Schlick at the FCC from seeking to use its newfound “authority” expansively.

Protecting privacy on the ‘Net appears to be one such area…for now.

In his written testimony at last month’s Senate hearing, Schlick states:

…[I]ncreased use of personal data in connection with new online and wireless applications is raising serious privacy and security concerns.  As the FCC recognized in the National Broadband Plan, successfully addressing these concerns will be critical to increasing adoption and deployment of technologies that benefit consumers, government, and the economy…

…Protecting privacy is a necessary part of providing communications services. So too, it is part of the FCC’s mandate to promote a healthy and competitive communications marketplace that meets consumers’ needs.

Note Schlick’s subtle use of the term “communications services.”  In using this general phrase – one that is far broader than “telecommunications” or “cable services” (where the agency’s authority is clear and defined) – Schlick reveals his hand.

Where do more and more of our communications services go to / come from?

Er, the Internet.

And, it’s not called the Federal Communications Commission for nothing, right?

So, as per Schlick’s urging, I guess the agency should get busy protecting Internet communications by protecting Internet privacy if the medium is to survive?

Of course, this tees up a logical follow-on question – one that civil liberties group EFF seemingly frets about.  Like, with its newfound Internet regulatory “authority,” what communications services couldn’t be regulated by the FCC under this scenario?


To this end, would fostering “Search Neutrality” be a good candidate, seeing that so much of our communications go through obscure search engine algorithms that can potentially distort where communications traffic goes and comes from?  Or, how about mandating changes in computer OS’s in order to help people communicate “more fairly” over the Internet, with less potential for “platform discrimination” and lock-in thereto?

Etc., etc., etc.

The possibilities are endless (sadly), being limited only by imagination.


The initial gist of my Senate hearing piece was that the hearing would reveal just how “successful” Google’s advocacy efforts in Washington were.  Quite simply, Schlick’s testimony was made more “plausible” because of Google’s success in shepherding through the FCC’s Net Neutrality regulations.  Without that “authority” and its implicit recognition that it can be wielded expansively, Schlick probably wouldn’t have been at the hearing – his testimony would have been useless due to the agency’s effective impotence on the matter.

As all know, success usually comes at a cost.  Unfortunately, that cost will be borne far beyond Mountain View, as the FCC seeks to “protect” Internet communications services in ways not yet imagined.

txpatriot July 14, 2011 at 4:36 pm

Good catch — thanx for keeping us posted. Eternal vigilance is the price of liberty & freedom!

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