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Data Privacy

The Federal Communications Commission (FCC) just adopted rules guaranteeing that broadband customers have choice, transparency and strong security for personal information collected by ISPs.

The rules separate the use and sharing of information into three categories and include clear guidance for both ISPs and customers on opt-in, opt-out and exception to consent requirements. The rules also include transparency, broadband provider and common-sense data breach notification requirements.

The ruling deals a blow to Comcast, AT&T, Verizon and others that rely on that kind of information for their ad business. The agency reclassified broadband last year to a service like a utility, thus requiring privacy rules similar to those for phone companies.

The Association of National Advertisers (ANA) reacted strongly to the news, stating: “The FCC’s new sweeping privacy rules decision is unprecedented, misguided, counterproductive, and potentially extremely harmful.”

The FCC’s rules are “far more restrictive than necessary and the Commission failed to adequately consider a substantially less restrictive alternative, an opt-out strategy,” stated Dan Jaffe, Group EVP Government Relations ANA. “The Courts have made clear that these types of restrictions violate the Constitution.”

In its statement, ANA indicated that it “is committed to seeing these rules undone, either by court challenges or action on Capitol Hill to reverse this extreme overreach by the agency.”

Jaffe recently said: “Existing privacy self-regulatory programs such as those carried out by the Digital Advertising Alliance are working well and already provide consumer transparency, notice and choice for interest-based advertising.”

The privacy ruling is part of FCC Chairman Tom Wheeler’s continued commitment to make the FCC an effective industry watchdog. “Consumers deserve to be able to make informed choices about their privacy and their children’s privacy online,” said Wheeler. “After all, it’s your data—shouldn’t you have a say over how it’s used?”

A recent Pew Research Center study found more than nine out of 10 adults (91%) agree or strongly agree consumers have lost control of their personal data and its use.

Following is the full ANA Statement on the FCC Broadband Privacy Vote:

The FCC’s new sweeping privacy rules decision is unprecedented, misguided, counterproductive, and potentially extremely harmful. Subjecting virtually all web browsing and application use data to opt-in consent is completely inconsistent with its long-standing treatment by the FTC, the states, and the Digital Advertising Alliance (DAA) self-regulatory program. ANA believed it was a positive step when the FCC stated it would distinguish between sensitive and non-sensitive data, but this proved to be merely misleading lip-service. The new definition of sensitive data adopted by the Commission today would encompass and swallow a vast amount of routine consumer data on the Internet and mobile media.

No one doubts that sensitive consumer data exists and that it should be protected. However, when virtually all ISP and app use data is treated as sensitive, the public will become desensitized to what is truly significant and what deserves enhanced notice and regulation.

This approach also will undermine the financial underpinning that advertising provides in support of the data-driven online economy. Consumers will be bombarded with opt-in notice requirements every time they search online, however innocuous the data they seek might be. The FCC proposal, for example, could trigger an opt-in notice when consumers search for a certain type of orange juice, pizza, or sports site. This is clearly an absurd result. Surely this type of information does not need the extreme level of protection adopted today by the FCC, but would be swept in under the FCC’s virtually all-encompassing browser and app usage privacy regime. The only way to avoid this onerous result is to allow consumers global opt-in consents that will mask the privacy issues involved.

ANA is committed to seeing these rules undone, either by court challenges or action on Capitol Hill to reverse this extreme overreach by the agency. 

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