FCC ushers in a troublesome new world for online privacy | TechCrunch

["David Farber" <farber () gmail com>]

> https://techcrunch.com/2016/11/07/fcc-ushers-in-a-troublesome-new-world-for-online-privacy/ 
> <https://techcrunch.com/2016/11/07/fcc-ushers-in-a-troublesome-new-world-for-online-privacy/>

David J. Farber
David J. Farber is Alfred Fitler Moore Professor of Telecommunications Emeritus at the University of Pennsylvania, 
Adjunct Professor of Internet Studies at Carnegie Mellon University and former Chief Technologist of the Federal 
Communications Commission.


Christopher S. Yoo
Christopher S. Yoo is the John H. Chestnut Professor of Law, Communication, and Computer & Information Science and the 
Founding Director of the Center for Technology, Innovation and Competition at the University of Pennsylvania.

In late October, the Federal Communications Commission passed new rules that take the unprecedented step of imposing 
stricter privacy regulation on one specific set of actors in the Internet ecosystem.
Along party lines, the FCC voted to impose onerous limitations on Internet service providers’ use of web browsing 
information without regard to whether the information is sensitive or not, which differs greatly from the guidelines 
governing all other online companies, like search engines and mobile apps.
Not only are these rules based on an inaccurate understanding of the underlying technology, they also create a 
fragmented privacy framework that deviates from the approach established by the Federal Trade Commission that has 
proven so effective in supporting innovation.
The Internet was relatively simple when it first exploded into the public’s consciousness during the mid-1990s. The 
typical user relied on a personal computer connected to their home telephone line to send an email or browse the World 
Wide Web.
A wide range of technologies and companies emerged that rely on personal data to provide a dazzling new array of free 
(or, more properly, advertising-supported) services.

To best protect consumers, the Federal Trade Commission created a privacy regime that provides the greatest protection 
for the most sensitive data, such as health care and financial information, while adopting a more permissive approach 
to less sensitive data, such as the use of purchase histories to make product recommendations.
The modern Internet has become far more complex and decentralized. A much larger number of users are employing a far 
broader range of devices and network technologies to run a greater variety of applications.
A decade or two ago, networks were able to learn about end users since they typically accessed the Internet from a 
fixed location, such as their homes.
Today users access the Internet from everywhere via mobile devices, which scatters information about individuals’ usage 
across a wide range of network providers and locations. Simultaneously, the increasing use of encryption is limiting 
networks’ ability to view the content of the traffic they are carrying.
In addition, modern operating systems and applications require that users identify themselves prior to using them. This 
practice permits operating systems and applications to track users across devices and locations, whether inside or 
outside the home and to use personal information in ways that many users do not anticipate.
Even browsing the web is now fundamentally different. For example, HTML version 5 added an API for geolocation. Web 
pages are now also designed to observe when a user using a mouse is hovering over particular content without clicking 
on it.
The speed of technological change counsels against regulating the Internet based on any particular conception of the 
current state of technology, as the inevitable evolution will soon render any understanding obsolete.
In the world of advertising-supported services, information gathered about users can make advertising better targeted 
and more effective.
But at the same time, consumers who enjoy access to Internet services are concerned about protecting their privacy. As 
a result, the best way to give consumers what they want is to strike an appropriate balance between which uses of 
personal information to permit and which ones to restrict.
The FCC’s approach abandons this nuanced perspective in favor of an approach that prohibits practices on which online 
companies frequently rely, such as making product recommendations based on past browsing and purchase history.

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