Trump Repeals FCC Privacy Rules, But ISPs' 'Fairness' Argument Weak

President Trump signed the S.J.Res. 34 bill into law, officially overturning the FCC privacy framework that would have required internet service providers (ISPs) to obtain consent before tracking their customers online and then selling access to that data to advertisers.

Repealing The FCC’s Privacy Protections

The FCC privacy rules required broadband providers such as Comcast, AT&T, and Verizon to obtain consent before using precise geolocation, health and financial information, and browsing history for advertising purposes. The previous FCC leadership thought that obtaining such information without consent is unacceptable and made it so that broadband customers would have to opt-in before such data collection from the ISPs occurs.

However, with the rules overturned, broadband providers will benefit from selling that data to advertisers on top of collecting monthly payments from their subscribers.

The main argument that the broadband providers and most Republicans have used to repeal the FCC’s privacy rules is that they should be under the same privacy rules as Google, Facebook, and other “edge” services. In the ISPs’ view, it’s not fair that online services can collect user data while they can’t.

The argument doesn’t hold much water. First of all, it’s not unusual for ISPs to have different rules compared to other technology companies. In fact, there are hundreds of pages of legislation that apply only to ISPs, and there is a good reason for that.

Edge services can come and go, and there’s usually plenty of competition for each one of them. This is in contrast to broadband providers, which typically enjoy local monopolies; typically, customers in a given locale don’t have much choice in internet providers. Therefore, if ISPs want to be under the same rules as edge services, they would first have to ensure the same type of competitive environment. Chances are that broadband providers aren’t too eager to see that happen.

Another side of this argument is that ISPs have a typical sort of business model wherein their users pay for a service. Most online services, on the other hand, are free to use, and they generate their revenue from advertising.

Unless ISPs are going to provide broadband access for free, then it doesn’t entitle them to use customer data however they see fit.

Even so, many users don't feel that trading free services for ads is acceptable in the first place. It’s mainly that they feel they don’t have much of a choice, because most services make their money that way.

This brings us to the third reason why the ISP argument is a weak one. If it's unfair for broadband providers to be under different rules than edge services companies, a consumer-friendly solution would be to put edge services under the same privacy rules that the FCC enacted for ISPs.

Then, consent for using sensitive data for advertising purposes would be necessary from both ISPs and online services. That's likely an outcome most people would want to see. But by pushing to roll back the FCC's privacy protections, ISPs can double dip--by making money both from subscriber payments and from mining user data, and then selling access to it to advertisers.

Fighting Back

The long term solution for gaining broadband privacy back is going to have to come in the form of a new law, passed by (presumably) a new Congress and Administration. Anything else is a mitigation, at best, and more of a cat-and-mouse game, as the ISPs will fight back to stop or slow down those mitigations.

However, until such legislation becomes a possibility, there are a few ways to reduce the impact of ISP tracking. You can increase your use of encryption, VPN services, and the Tor browser, and you can also change your DNS servers from those owned by the ISPs and assigned automatically to your devices to privacy-friendly ones. You can also enable any and all opt-outs the ISPs offer you, however complicated and confusing that process may be.