• by Wendy Davis  @wendyndavis, February 26, 2016

Broadband providers inform consumers about online tracking and give them a "meaningful choice" about whether their data will be used for behaviorally targeted ads, the online publishers' organization Digital Content Next says today in a letter to the Federal Communications Commission.

"In light of their access to sensitive information about consumers, we urge the FCC to require broadband providers to provide consumers with transparency and meaningful choice with regard to the collection and use of personal information especially when this data will be used for purposes that fall outside of a consumer’s expectation and outside of the context of the interaction where the data was collected," the organization writes. "Consumers should have the ability to exercise choice via a mechanism that is easy to use, persistent and universal."

The organization's comments come as the FCC is preparing to draft potential privacy rules for broadband providers. The agency's upcoming move stems from its recent decision to reclassify Internet service providers as common carriers. That ruling subjected broadband providers to some of the same confidentiality requirements rules as telephone companies.

When the FCC issued the net neutrality rules, the agency indicated it would issue new broadband-specific rules, as opposed to applying the same rules imposed on telephone companies. Since then, FCC Chairman Tom Wheeler indicated in an interview with talk show host Charlie Rose that the agency will require providers to notify consumers about the possibility of online data collection, and allow them to wield control over the use of that data.

Last month, dozens of privacy groups and consumer advocates asked the FCC to prohibit broadband providers from collecting and sharing data about consumers without their explicit consent.

One of those organizations, the Open Technology Institute at New America, said in a recent report that broadband providers pose unique risks to consumers' privacy. That group pointed out that ISPs have access to nearly all sites visited -- including doctors' sites -- as well as usage patterns.

The National Cable & Telecommunications Association, CTIA and other organizations representing Internet service providers argue that any new FCC privacy rules should be consistent with the Federal Trade Communications' approach. The FTC enforces laws against deception and unfairness, but doesn't generally require ad-tech companies that collect data about adults to follow specific privacy standards. Historically, when the FTC has brought privacy lawsuits against online ad companies, the cases have centered on allegations that the companies didn't follow their own privacy policies.

Unlike the coalition of privacy advocates, Digital Content Next isn't specifically calling for ISPs to obtain consumers' explicit consent to tracking for ad purposes. The group says that offering opt-out mechanisms would suffice, as would honoring a signal like a browser-based "do-not-track" header, or Apple's "Limit Ad Tracking" command.

"Regardless of the method, broadband providers should provide opt-out or opt-in choice mechanisms that are easy to use, not buried in a privacy policy or the terms and conditions, and persistent," Digital Content Next says.

Jason Kint, CEO of the organization, says the letter expresses the organization's long-standing position that companies should use data consistently with consumers' expectations.

"Respecting context is an important principle to consider with regard to broadband providers," Digital Content Next writes. "For example, a reasonable consumer would expect a mobile broadband provider to collect data about how a consumer uses their mobile device so the company could make improvements to the broadband service or ensure efficient management of the network. However, consumers would not expect (or even know) if a mobile broadband provider was using this same set of data to tailor advertising to consumers on websites or apps."