Privacy is a late to-come-by issue of the Federal Communications Commission (FCC) as Internet Service Providers (ISP) were reclassified. As part of the push for net neutrality, ISPs were soon to be treated as common carriers by the FCC. This has left the door open for broadband providers to access customer information that is proprietary within the network. The rules that govern customer information within the body of what is terms proprietary network information was not to address privacy and the protection of confidential customer information.
The main concern was competition among broadband providers within the Telecommunications Act of 1996 which, with the reclassification of ISP as common carriers under the FCC, did not necessarily heightened the point of privacy. The Federal Trade Commission (FTC) which would normally have privacy over say on the issue of privacy and advertising and consumer protection, is devoid of that role regarding common carriers.
With ISPs being reclassified as common carriers, the FTC is left out of the mix. The FTC Act does not cover common carriers, hence, it will not cover ISPs. However, rulemaking is needed to address this needed regulatory bridge. In the meantime, the FTC and FCC have figured to set a joint memorandum of sorts to address enforcement efforts to ensure the gaps are covered from what was overlooked by the reclassification of broadband providers as common carriers.
The issue not foreseen but now forced to address is the fact that the FCC is forced to apply in a disjuncture way privacy rules that were originally drawn to apply to telephone landline companies and not to ISP. It is now that the FCC is addressing its need for rulemaking to address how to administer appropriate privacy rules over broadband providers. This rulemaking initiative of the FCC will have to address how to protect the consumer private information. This information is termed customer proprietary network information or CPNI.
The FCC, as it proceeds to address rulemaking over the privacy concerns to protect CPNI, must address several issues: ISP collecting data on consumer usage patterns; ISP profiling usage for third-party advertising, ISP’s working with data aggregators, and unfair competition and deceptive practices. The last but definitely not least of the issues to be dealt with by the FCC rulemaking is data breaches and cyber security incidents compromising CPNI.
Nevertheless, there is a lot on the table for the FCC upcoming rulemaking to address privacy concerns regarding ISP as common carriers under the auspices of the FCC and still appreciating the potential ISP advertising revenue it could negatively impact.