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​Comcast’s Defense of ‘Pay-For-Privacy’ Alarms Consumer Advocates

The cable giant is exploring how to gain greater access to user data.

How much is your privacy worth?

That's the question that Comcast customers may soon face if the broadband giant decides to start offering discounts in exchange for more intrusive access to user data.

This is not idle speculation. In a Federal Communications Commission filing this week, Comcast urged regulators not to ban internet service providers from offering cheaper service plans for those customers willing to accept increased monitoring of their web browsing habits.

In its filing, Comcast warned the FCC not to prohibit "business models offering discounts or other value to consumers in exchange for allowing ISPs to use their data." The FCC has "no authority to prohibit or limit these types of programs," the company said.

"A bargained-for exchange of information for service is a perfectly acceptable and widely used model throughout the US economy, including the internet ecosystem, and is consistent with decades of legal precedent and policy goals related to consumer protection and privacy," the cable giant added.

"Should the FCC decide to adopt its radical and unprecedented opt-in proposal, we must keep options open."

Comcast's filing was made in response to the FCC's ongoing broadband privacy rule-making process. The agency is weighing tough new broadband privacy guidelines, based on its recently-upheld authority to regulate internet service providers as "common carriers" under Title II of the Communications Act.

In its broadband privacy "Notice of Proposed Rulemaking," the FCC indicated that it is considering banning the kind of practice that Comcast defended. The aim of the agency's process is to clearly delineate "opt-in" and "opt-out" standards for establishing user intent to track their web browsing habits.

Telecom giant AT&T already offers such a plan, called "Internet Preferences," which tempts consumers with "best pricing" if they are willing to let the company "use your individual web browsing information, like the search terms you enter and the web pages you visit, to tailor ads and offers to your interests."

Users who opt-out of "Internet Preferences," which DSLReports calls a "deep packet inspection program that tracks your browsing behavior around the internet—down to the second," face a $30 premium on their monthly bill.

Comcast's filing touched off a kerfuffle among consumer advocates, who call such plans "pay-for-privacy" schemes.

Malkia Cyril, executive director of the Center for Media Justice, told Motherboard that the type of service offering that Comcast is advocating would "disproportionately harm low-income people," who are most likely to choose a cheaper plan in exchange for giving up some of their privacy.

Cyril compared such plans to the controversial broadband industry practice of "zero-rating," in which telecom giants exempt certain online services from data caps, effectively favoring those services over rival offerings by creating an economic incentive for consumers to use some services over others.

"In any 'pay-for-privacy' world, there must be a baseline of fundamental privacy protections for every person who subscribes to broadband," Kate Forscey, associate counsel for government affairs at DC-based consumer rights groups Public knowledge, told Motherboard. "These plans must not disenfranchise anyone, especially communities that already struggle to obtain broadband access."

"Consumers must not be put in the position to make that Sophie's Choice—to give up the right to privacy in exchange for a right to essential broadband services," Forscey added.

In its filing, Comcast also urged the FCC to adopt a so-called "sensitivity-based approach to consent" with respect to user privacy.

Under such an approach, "opt-in consent would be required only with respect to the use or disclosure of sensitive information (financial, health, and children's information, Social Security numbers, and precise geolocation information), while the use and disclosure of non-sensitive information would be subject to opt-out consent in most instances and implied consent for an ISP," Comcast said.

Gaurav Laroia, policy counsel at DC-based public interest group Free Press, said that now that the DC Circuit has upheld the FCC's Title II authority, Comcast's promise to only protect sensitive information "makes little sense."

"It would be like asking the post office to open and read your mail and then only protect the privacy of those letters that talked about your health or finances," Laroia told Motherboard.

"Comcast is also wrong about pay-for-privacy," Laroia added. "The FCC has ample authority to examine those practices and to make sure they are neither unfair nor discriminatory. Broadband providers have a statutory duty to protect their customers' privacy and the FCC must ensure that telecom privacy does not become a luxury good for the few."

A Comcast spokesperson told Motherboard that the cable giant "has no plans to offer such a discount but should the FCC decide to adopt its radical and unprecedented opt-in proposal, we must keep options open."