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ISPs Use Facebook Scandal to Push For Bad Privacy Laws They Know They’ll Get To Write

An industry that has spent decades fighting for less privacy oversight suddenly wants to lead the way on new legislation.

Karl Bode

Image: Michael Robinson Chavez/The Washington Post via Getty

Large ISPs that have spent countless hours fighting meaningful privacy protections are suddenly using the Facebook fracas to call for new privacy laws. Why? They know they’ll probably be the ones writing the legislation.

ISPs like Comcast and AT&T furiously lobbied the Trump administration and Congress to kill FCC broadband privacy protections before they could take effect last year. Those rules would have simply required that ISPs be completely transparent about what consumer data is being collected and sold, and required they provide working opt-out tools.

The FCC rules were only proposed after ISPs were caught charging broadband customers more money to protect their privacy, modifying wireless packets to track users around the internet (without telling them), and contemplating using private customer financial data to deliver worse customer service to low-income subscribers.

But with the Facebook privacy scandal making headlines, ISPs have suddenly pivoted to insist they support meaningful privacy protections, despite their utterly terrible track record on the topic.

"In the search for privacy best practices, Congress need look no further than America’s broadband providers"

Former FCC boss turned top cable lobbyist Michael Powell, for example, has spent the last few weeks demonizing Silicon Valley companies in speeches and calling for the regulation of Google and Facebook, companies AT&T, Verizon, and Comcast will be competing with during the streaming video advertisement wars to come.

Image: Shutterstock

USTelecom, an AT&T-backed lobbying organization, has published a series of blog posts claiming the broadband industry not only really adores the idea of a new federal privacy law, but is perfectly positioned to lead the way on privacy.

“In the search for privacy best practices, Congress need look no further than America’s broadband providers,” the lobbying org proclaims. “For over 20 years, internet service providers (ISPs) have protected their consumers’ data with strong pro-consumer policies. ISPs know the success of any digital business depends on earning their customers’ trust on privacy.”

That’s an interesting claim, given the broadband industry’s rich, indisputable history of being the poster child for bad behavior on the privacy front. It’s also a curious missive given the broadband industry has been working with Google and Facebook to try and scuttle some modest consumer privacy protections in California.

“Congress should act now to eliminate consumer confusion and level the playing field,” US Telecom said in a separate statement sent to the media during Zuckerberg’s testimony before the Senate. “It’s time for the leadership of the so called ‘platform companies’ like Facebook to get on board because it’s in the best interest of American consumers and innovators.”

This message that giant telecom monopolies are the perfect role models to shepherd us through this privacy gauntlet was mirrored in another blog post this week by Charter CEO Tom Rutledge, who was the highest paid executive in America in 2016.

“Different policies leading to inconsistent protections sow confusion and erode consumer confidence in their interactions online, threatening the Internet’s future as an engine of economic growth,” Rutledge said, hinting at the longstanding ISP argument that net neutrality should be equally applied to content companies (which makes no sense if you understand net neutrality is specifically about a lack of competition caused by natural monopolies.)

“And as an Internet Service Provider, that’s bad for business,” Rutledge said. “So we are urging Congress to pass a uniform law that provides greater privacy and data security protections and applies the same standard to everybody in the Internet ecosystem, including us.”

Given that Charter was one of the ISPs that lobbied to scuttle the FCC’s modest privacy protections last year, that’s again a dubious claim. So what’s actually going on here?

As we’ve previously discussed, the broadband industry has not only been busy gutting privacy and net neutrality protections, but attempting to gut FCC oversight of broadband ISPs entirely. Instead, they’ve been trying to shovel all oversight of ISPs over to the FTC, an agency many experts (and former FCC boss Tom Wheeler) argue is unsuitable for the task.

The FTC lacks rule-making capabilities and can only take action against ISPs if their behavior can be proven to be “unfair and deceptive,” a tricky task in the net neutrality arena, where anti-competitive behavior is often disguised as routine network management.

AT&T has also been busy in court trying to simultaneously eliminate all FTC authority over broadband ISPs, something ISP lobbyists and paid consultants often “forget” to mention.

ISPs are worried that the FCC’s net neutrality repeal may not survive the looming court challenges. So they’re hoping to use this opportunity to craft new laws that formally and finally shovel ISP oversight from the FCC to the weaker (at least in terms of telecom oversight) FTC, which would make holding any of them accountable harder than ever.

More simply, the ISP stranglehold over Congress is so absolute, they believe they’ll be able to use the Facebook firestorm to literally write a new, crappy privacy law. A law whose real goal will be to pre-empt tougher state or federal rules, while cementing their effort to gut meaningful government oversight over their businesses (including real net neutrality).

As giants like Comcast NBC Universal and AT&T (and Time Warner, if its merger is approved) push harder into the online video advertising business, they’ll also likely try to use the opportunity to include numerous loopholes for ISPs, but added, obnoxious hurdles for the companies they hope to compete with in the video advertising wars to come.

It should go without saying that Google and Facebook are no privacy angels either. Both recently put aside their contentious relationship with AT&T, Verizon, and Comcast to collectively kill privacy protections in California (largely by being misleading about what the proposal would have done), and have routinely fought real privacy protections for years.

None of these companies want meaningful privacy protections, since an informed, empowered consumer with the ability to opt out of data monetization schemes means making less money.

Knowing that public sentiment is quickly lining up against them, their next best hope is to pass crappy laws they’ll be the ones writing, ensuring any legislation passed is just a faint, phony echo of a real privacy solution.