On March 1, the Federal Communications Commission (FCC) granted a temporary stay of one of the broadband privacy rules adopted in October of last year. That rule, which pertains to data security, would otherwise take effect on March 2. Newly installed FCC Chairman Ajit Pai and Federal Trade Commission (FTC) Acting Chair Maureen Ohlhausen issued a joint statement in support of the stay, which will allow the FCC to consider petitions for reconsideration of the October 2016 Report and Order before the data security and other new requirements for broadband internet service providers (ISPs) take effect. The Chairmen expressed their goal of “harmonizing the FCC’s privacy rules for broadband providers with the FTC’s standards for other companies in the digital economy.”
The FCC’s 2016 Report and Order established a comprehensive set of rules for protecting the confidentiality and security of information that ISPs acquire from their customers. Pai was one of two FCC Commissioners who issued a strong dissent. The recent stay, approved by the FCC in a 2-to-1 vote along party lines, follows Pai’s statement on February 24, 2017 that he would seek to reconsider elements of the Obama-era FCC’s privacy rules that were inconsistent with the FTC’s rules.
The moves by the FCC presage the likely withdrawal of the prescriptive broadband privacy rules, which rely on a determination by the FCC that ISPs are common carriers under its jurisdiction. This would return ISPs’ treatment of consumer privacy to the FTC, which has more experience enforcing privacy and data security laws in a technology-neutral manner.