Early last year, several states, including California, began to consider various forms of online privacy legislation. Most of these efforts failed, including in the Golden State, in part because such moves would have actually placed citizen’s privacy at greater jeopardy.
But with the recent vote by the Federal Communications Commission (FCC) bad ideas are again taking hold. Sen. Scott Weiner, D-San Francisco, announced in December plans to introduce legislation this year to restore net neutrality in California.
The FCC decided that it would restore a free and open internet by voting to free the internet from a 1930s heavy handed government regulatory scheme imposed by the previous administration. The law would have only targeted internet service providers, misdirecting citizens into believing all of their online interactions were protected. For those who favor a government controlled internet experience, the vote was a heartbreaker. Some have vowed to turn to the states in an attempt force their vision of government restrictions, often obfuscating the facts by claiming that the internet user’s privacy is at stake. But the claim is not just misleading, it is false.
The FCC caused a great disruption in privacy protection for consumers in 2015 when the agency voted to reclassify Internet service providers as Title II common carriers. Before, privacy was protected by the Federal Trade Commission (FTC) under its authority to police unfair or deceptive trade practices.
But complicated new rules adopted in late 2016 changed all of that, imposing discriminatory and restrictive rules on Internet service providers that were confusing for consumers, lulling them into a false sense of security.
The rules were stayed in early 2017, “in order to undo the Order’s dramatic departures from the FTC’s privacy framework, which effectively balances the twin objectives of providing consumers control over their personal information while preserving opportunities for beneficial uses of data that lead to innovation, new products and capabilities, customized services, and growth in the digital economy.”
But because of the latest FCC vote, and in a notable victory for privacy, the FTC can now return to its role as the federal privacy cop. So, contrary to those who apparently only want to stir discontent, consumers again have a shield of protection if a provider fails to live up to a promise. And beyond the FTC, state’s attorneys general still stand at the ready along with any private rights of action that can be brought directly by a consumer.
The internet, by its very nature, is interstate, and so a national policy framework for internet services to ensure uniformity across the country is paramount. Even acknowledging that the foundational government power are the individual states, there is also a clear role for the federal government as the Founding Father’s envisioned. Without clear FCC action to implement a national framework, the states are poised to carve up the internet into a series of systems, each regulated in its own way, ultimately creating a patchwork quilt that is antithetical to the very nature of the internet we understand. This was the path that California nearly followed before the legislative proposal failed in the State Assembly.
A change to any part of the internet ecosystem has an impact on all parts of the ecosystem. So, a change to how service providers operate has real effects on all online services and operations. The well-being of the internet, at least as it exists in the U.S., is dependent on all parts of the ecosystem being healthy, and free from interference.
Platforms such as social networks, search engines, operating systems, webmail, browsers, mobile apps, and e-commerce, all with access to consumer data, are proliferating. The relationship between these various layers in the stack of the ecosystem, including service providers is tightly woven in part because of vertical integration, but also because of a web of contracts and interdependencies. Upsetting or isolating one part of the stack does not necessarily lead to linear and predictable results. In fact, observation informs us that the opposite is typically true.
But this will not be the last word. Now there is a privacy ballot initiative proposed for the November 2018 election, partially in response to the FCC actions. Hopefully California will stay the course, making sure that all its citizens have protected, understandable privacy rights.