FCC Broadband Plan Focuses on Privacy, Competition

Julius Genachowski

The Federal Communications Commission's ambitious national broadband plan will include recommendations aimed at ensuring consumers' online privacy, according to an executive summary released on Monday.

While the six-page summary was short on details, the FCC said it intends to suggest measures to "clarify the relationship between users and their online profiles ... including the obligation of firms collecting personal information to allow consumers to know what information is being collected, consent to such collection, correct it if necessary, and control disclsoure of such information to third parties."

The FCC in January asked for comments about online privacy in response to a proposed notice of inquiry submitted by the digital rights group Center for Democracy & Technology. But it wasn't clear until Monday whether the FCC intended to address the issue in its broadband plan.

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The decision to address privacy at all could prove controversial. Earlier this year, the Interactive Advertising Bureau had asked the FCC to refrain from considering online privacy in the broadband plan. The IAB argued that Congress tasked the FCC to formulate a broadband plan as part of a stimulus bill that "makes no mention of privacy" and was aimed at "furthering the build out of a high-speed broadband infrastructure across the country."

Now that the FCC is issuing privacy recommendations, early indications are that the commission might have incorporated standards that are fast becoming outdated.

For instance, the summary released on Monday focused on a notice-and-choice regime for the collection of "personal information."

But Jules Polonetsky, co-chairman and director of the think tank Future of Privacy Forum, says that policymakers seem to be shifting away from the notice-and-choice framework -- at least when it involves providing notice and an opportunity to opt out of targeting in lengthy, legalese-filled privacy policies. "Progressive thinkers in government are laying the groundwork to evolve beyond that mode of thinking," he says.

A recent article in The New York Times quoted Daniel Weitzner, a policy official at the Commerce Department's National Telecommunications and Information Administration, as saying: "There are essentially no defenders anymore of the pure notice-and-choice model."

In addition, the FCC's executive summary focused on personal information, but there's currently a great deal of disagreement about what that term means.

Ad industry executives have often defined "personally identifiable information" as name, address, email address or phone number, but consumer advocates and policymakers have been pressuring for more expansive definitions. They argue that people can be identified based on even so-called anonymous data if enough of it is collected. Search queries alone can be used to identify people, as happened after AOL released three months' worth of such queries.

Last year, the Federal Trade Commission said that even non-personally identifiable information could be used to identify specific users.

The broadband plan also will include recommendations aimed at improving competition. Among other suggestions, the FCC will recommend "comprehensive review of wholesale competition rules to help ensure competition in fixed and mobile broadband services," as well as rules requiring increased transparency in performance. In addition, the FCC also will ask broadcasters to give back spectrum that can be used for wireless computing.

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