Fear Expressed That New FCC Privacy Role Would Fragment Federal Policy

Now the FCC has direct power over what’s called customer proprietary network information, Glist said at a Law Seminars International session. But that relates to the past of communications, not its future, he said. A commission spokeswoman didn’t get back to us right away. At the seminar, senior attorney Laura Berger of the FTC Division of Privacy and Identity Protection, wouldn’t comment.

The FTC and the Obama administration probably will reconcile themes in major privacy-policy pronouncements promised soon, Glist said. Although the FTC is an “independent agency, there will be some effort to harmonize the message to the industry” in a commission policy framework and a Commerce Department white paper, he predicted.

Glist said he’s inclined toward “where I think” the administration “is coming out in a couple weeks” in the Commerce paper: bringing “stakeholders” together by sector to flesh out for themselves the Fair Information Practice Principles, “not trying to micro-manage every aspect of that through a statute.” The FTC has been responsive to business replies to its draft framework, but that proposal would mean “a lot of traps for the unwary,” so a slip by a company could mean being targeted by the commission or state attorneys general, he said.

"Even the best” congressional proposals on data privacy, notably a bill by Sens. John Kerry, D-Mass., and John McCain, R-Ariz., “fall into common traps,” Glist said. A broad definition of protected personal information can undermine the use of anonymization, and the more access that users have to data about them, the harder security is to maintain, he said. Also complicating congressional action is that some regulated companies prefer the current industry-specific rules they know to falling under a new general law, and that businesses tend to fight being included in covered industries unless their competitors are, he said.

Underlying much policy discussion is a premise that rules for collecting user information should be tighter at the cable modem than at websites and applications, Glist said. But the march of technology means that “the line between the core and the edge gets a little blurry,” he said. Consumers’ expectations will be set more consistently if rules are consistent throughout the network, Glist said.

Telcos will be studied more critically for their data collection than they have been in the Carrier IQ affair, said Nicole Ozer, the ACLU of Northern California’s technology and civil liberties director. “The more traditional telecom folks feel they're being left out” of the business opportunities from exploiting customer information, she said. “There will be more attention to this at some point,” and “there’s going to be some reaction” when it dawns on customers that carriers are making money on the data in addition to charging full freight for the services that produce the information, Ozer predicted. The moral of Carrier IQ is that “you should disclose your practices to consumers and get consent for some of the things you might do with the information,” the FTC’s Berger said. “Consumers do need to know and understand so they can decide whether to use your service."

The Supreme Court’s decision in U.S. v. Jones against warrantless GPS tracking has produced “a lot of energy and attention by state legislators” concerning location technology, Ozer said. Bills in Illinois resemble the proposed federal GPS Act and Consumer Mobile Fairness Act, she said. Measures introduced in Delaware, New Hampshire and Virginia deal with GPS tracking only, Ozer said. She said she wouldn’t be surprised to see additional state bills.