• by Wendy Davis , Staff Writer @wendyndavis, March 2, 2016

Internet service providers are pushing the Federal Communications Commission to reject new privacy rules that could limit online behavioral advertising.

In a letter sent to the FCC on Tuesday, the American Cable Association, National Cable & Telecommunications Association, USTelecom, CTIA and Competitive Carriers Association argue that all companies involved with online advertising should be "subject to a consistent privacy framework with respect to consumer information."

That statement is equivalent to saying there should not be any restrictions on tracking, given that Web publishers and ad networks need not let users wield control over online tracking and ad targeting. Instead, the Federal Trade Commission has said that Google, Facebook and other Web companies must follow their own privacy policies.

The trade groups specifically argue that whatever new regulations are enacted by the FCC shouldn't apply to data that's "de-identified, aggregated, or does not otherwise identify a known individual."

"The insights derived from the use of de-identified data can offer great benefits to consumers and society and such use avoids the sensitivities that may be associated with identified data," the organizations write.

In practical terms, exempting "de-identified" data from privacy rules could leave broadband providers free to engage in tracking and ad targeting regardless of consumers' preferences, because companies that power behavioral targeting say they don't collect users' names, much less send them to advertisers.

It's worth noting, however, that questions about when data is de-identified don't lend themselves to clear-cut answers. AOL mistakenly thought it had de-identified users when it published three months' worth of search queries from 650,000 "anonymized" members. In fact, researchers were quickly able to re-identify users based on patterns in their search queries. Most famously, within days of the July 2006 data release, The New York Timesidentified and profiled AOL user Thelma Arnold.

The letter comes as the FCC is preparing to move forward with new privacy rules for broadband providers. The agency's authority to issue those rules comes from its recent decision to reclassify Internet service providers as common carriers -- a move that subjects broadband providers to some of the same confidentiality requirements rules as telephone companies.

When the FCC issued the net neutrality rules last year, it said it would consider issuing new broadband-specific rules, as opposed to applying the same rules imposed on telephone companies.

It's not surprising that broadband providers argue that they shouldn't be treated differently than companies like Google or Facebook. But there are significant differences between ISPs and content companies.

One is that ISPs arguably have access to far more data than any individual Web company. Some observers disagree; this week, privacy expert Peter Swire released a report arguing that the growing use of encryption has given broadband providers a less "comprehensive view" of consumers than in the past. But privacy advocates say that even when sites are encrypted, ISPs can glean information about people based on their usage patterns.

There's another reason why broadband providers aren't equivalent to individual Web companies: Consumers can easily control the cookie-based targeting deployed by Google, Facebook and others by deleting cookies, signing out of services, or accessing sites from different browsers. But it's much harder to prevent broadband providers from collecting data.

What's more, consumers have a choice about which Web sites to visit. But most people have extremely limited options when it comes to a broadband provider.

The FCC hasn't yet proposed any specific rules, but Chairman Tom Wheeler recently floated the idea that the agency could require providers do of online data collection, and allow them to control how that data is used. "The capital asset of the 21st century is information, and it ends up being information about you and me," Wheeler told talk show host Charlie Rose. "You and I ought to have a voice in the collection of information about us. Nothing about me without me, is what the expression is."