Privacy on the Edge

In a November 6, 2015 Order, the FCC’s Wireline Competition Bureau declined to extend customer privacy protections to “edge providers”—such as Facebook, Google, YouTube, and Netflix—by denying a petition for rulemaking to require such providers to honor “Do Not Track” requests received from users.  The petition from Consumer Watchdog advocated for expansion of privacy protections under the new net neutrality rules, urging that such protections are necessary to promote consumer trust and widespread broadband deployment.

Under Section 222 of Title II of the Communications Act, telecommunications carriers have a longstanding obligation to protect the confidentiality of their customers’ private information.  In its 2015 Open Internet Order reclassifying broadband Internet access service (BIAS) as a telecommunications service under Title II, the FCC determined that Section 222’s core customer privacy protections extended to BIAS providers.  Acknowledging that its current rules are tailored for voice services, however, the Commission deferred for a later rulemaking the adoption of a new set of privacy rules to apply to Internet access service providers.

Consumer Watchdog’s petition asked the FCC to go a step further, pressing the case to adopt online privacy rules to force edge providers to abide by users’ “do not track” requests.  “Do not track” is a mechanism through which users can set their web browsers to request that a web application disable its tracking features.  Although this feature has been around for years, websites are not required to comply and, indeed, ad-based websites often have scarce incentives to do so.

Rejecting the petition, the FCC concluded that regulating edge providers in this manner would be inconsistent with the Open Internet Order and reiterated that the Commission has no intention to regulate edge providers.  The Commission emphasized that it was not broadly regulating the Internet per se, or Internet content or applications.  Rather, the Open Internet Order distinguished BIAS providers as the transmission component of Internet access service.