Consumer Watchdog Considers Appeal of FCC ‘Do Not Track’ Rejection

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The Federal Communication Commission's decision not to require Websites to honor "do not track" browser settings has not deterred Consumer Watchdog's plans to get some sort of federal protection against Web user tracking.

The FCC announced its decision on Nov 6, saying that even though its reclassification of the Internet allowed it to treat Internet communications services in a manner similar to phone companies, it does not intend to apply some telephone privacy regulations to the Internet.

The dismissal of the Consumer Watchdog comes only about a month before the first cases challenging the FCC's reclassification of the Internet are to be heard in court starting on Dec. 4. According to Consumer Watchdog's Privacy Project Director John M. Simpson, the organization has a month to decide whether to appeal the FCC's decision, but he indicated that he's leaning that way now.

In its dismissal, the FCC said that while it had decided to reclassify broadband, "The Commission has been unequivocal in declaring that it has no intent to regulate edge providers." The Websites that Consumer Watchdog is seeking relief from are considered by the FCC to be edge service providers, and the agency has said that it is only seeking to regulate communications services.

The explanation for the dismissal also said that the FCC is not "regulating the Internet, per se, or any Internet applications or content." Instead, the FCC said that it was regulating "only the transmission component of Internet access service."

However, the FCC also said in its explanation that because the reclassification does allow it to create regulations that protect privacy, that this was an area for future rulemaking. As you might expect, Simpson doesn't agree. "We think that edge providers are information services and you can regulate them" under section 706 of the communications act, Simpson said.

The regulation of user privacy on the Internet, especially when it comes to Websites, is very much a gray area. So far, the only agency that has actually addressed the "do not track" issue in regard to Websites and browser settings has been the Federal Trade Commission. The FTC took a position encouraging the use of the "do not track" function, but so far has not taken action on it.

However, the FTC does administer the "do not call" list, and it's able to take action against companies that violate the limits of that list. Perhaps the authority for the "do not call" list could be expanded to include "do not track?"

Right now, that's unclear. To some extent, it would be up to the FTC whether it wanted to push the envelope that far.

A better approach is probably to get some legislation through Congress that would support some agency, perhaps the FCC or the FTC, in a mission to regulate privacy over the Internet.

However, Simpson says that he's already tried legislation, so far to no avail. He's pinning his hopes on the FCC.

But FCC action before the various lawsuits over its reclassification authority are resolved is unlikely. I suspect that from the FCC's view, there are two significant reasons to delay any decision such as the one proposed by Consumer Watchdog.

The first reason is that the FCC might be told by the courts that it lacks the authority to reclassify the Internet so that it can regulate it as a telephone company. Obviously if that happens, the FCC will have to go back to the way things were, which would invalidate any move toward privacy regulation.

The agency will be able to get an idea how things are going in regard to reclassification when the trials start. Then, if it becomes clear that the FCC isn't getting its way, there's no point in moving forward in regard to regulating Websites for their privacy practices.

If the reclassification is upheld, then the FCC has said that it plans to create Internet privacy rules that are more appropriate than the rules designed for phone services. That's the rulemaking that the FCC announcement referred to. But that's a ways off.

For now, despite the hopes of Consumer Watchdog and other privacy organizations, I don't see any immediate chance that the FCC is going reverse its decision. While it may eventually adopt a rulemaking that will cover the "Do not track" setting on Web browsers, that's unlikely to happen while the Commission is involved in defending its actions to reclassify the Internet.

Considering the thin existing support in the Communications Act for the sort of privacy protection that Consumer Watchdog and other advocacy groups want, getting any kind of support at all seems remote, at least while the FCC is fighting for its administrative legitimacy in terms of Internet regulation. Likewise, while the FTC can take action when privacy is promised, but not delivered, if a Website isn't promising privacy, then there's not much that the FTC can do.

While Simpson has said that he's tried legislation in the past, it might be time to try again. This is one time when it might be worthwhile for privacy advocates to push for legislation that a bipartisan Congress might vote for. But short of legislation, it doesn't look like anything will or can happen to impose privacy requirements on Internet Websites.

Facebook, Google and many others are free to ignore with impunity users' requests for online privacy.

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