Rescinding Internet Privacy Rules: Not as Bad as Advertised, But Bad Enough.

Fact: There will be no greater sharing of your internet browsing and purchasing history if President Trump signs the legislation that has now passed both houses of Congress and is awaiting his signature than there is right now. That’s because the FCC rule prohibiting Internet Service Providers (ISP’s) from selling or sharing your browsing and purchasing proclivities have not gone into effect and won’t go into effect until next December. They are free to market your internet history right now.

Eager to avoid controversy, the nation’s largest ISP’s—Comcast, AT&T and Verizon all rushed to state that they do not, and will not, sell personal web browsing histories without the customer’s permission even if the President signs the new law—which raises an interesting question.  Why rescind the regulation that prohibits the ISP’s from doing what they have just pledged not to do anyway?  What’s the hurry?  Why not wait until one of the companies breaks its pledge not to sell personal browsing history?  Silly question.  If selling your personal browsing history is a bad idea, or an infringement of internet user privacy, then the customer’s approval should be required before an ISP begins hawking the sale of his or her internet visits. Promises are easily broken. Laws and regulations are not so easily broken without risk.

Lawyers for the ISP’s argue, somewhat disingenuously we believe, that rescinding an ISP’s right to market your personal internet history is a violation of YOUR first amendment right of free speech. They argue that you can’t exercise your right to speak (for instance to buy or rent a movie on the internet) if the purveyor of that movie isn’t free to communicate to you that it is available. Yeah, we think that’s a bit far-fetched too.

We think the eleventh-hour, Obama-era FCC rule that prohibits ISP’s from selling your personal information unless you specifically opt-in and give your permission to have your history marketed is, on balance, a worthwhile protection of an individual’s right to privacy. FBI Director Comey’s warning that “there is no such thing as absolute privacy in America” may be true, but we doubt that many Americans would simply shrug their shoulders if they knew their ISP was free to sell to the nation’s purveyors of goods and services, without their permission, whatever visits they made on the internet.

Here’s the real rub as we see it. Our individual buying or browsing decisions, when aggregated with those of millions of other internet users gives ISP’s the wherewithal to move aggressively and powerfully into the marketing and advertising business without paying for the biggest asset they have – our individual, but now aggregated, internet history. In fact, the ISP customer pays the ISP to provide him or her with internet service. Perhaps the ISP should provide substantially discounted internet service to its customers in return for the Big Data muscle the customers are, collectively, providing the ISP. Now that would be something worth considering.

As might be expected, every Republican senator voted to kill the FCC privacy rules and every Democratic senator voted to preserve them. The opposition never misses an opportunity to politicize an issue if it makes them seem more virtuous than those who are in power. Of course, the reverse is true as well. Those in power will try to marginalize the opposition by politicizing issues that serve their interests.

To be clear, ISPs can only “see” a domain name such as www.halgershowitz.com (my personal web address or URL), but the ISP can’t “see” which of my books or other links you may have accessed once you arrived at my (or any) URL. Nonetheless, being able to profile nearly every consumer by his or her web preferences is an incredible marketing tool, and ISP’s garner that information as a side benefit of providing internet service to their customers. That they can “follow” every customer to whom they provide service and report the “comings and goings” of their customers to whoever is willing to pay for that information is no small matter. No one would tolerate a gumshoe following them around and reporting where they go and what they buy, and, we would bet, few people want their internet comings and goings reported to the highest bidder either.

To be sure, ISP’s have always had the ability to do that and, to date, there is little evidence that they have abused that capability. Internet retailers such as Amazon can, of course, track with specificity what you buy once you enter their domain, but the consumer understands that when he or she clicks into Amazon to shop.  Social media users also volunteer considerable profile information when they subscribe, and just about everyone understands that social media activity is the antithesis of privacy.

ISPs such as AT&T, Comcast and Verizon are different and they are on the cusp of becoming advertising behemoths because of their access to the personal shopping and browsing preferences of their customers. That is exactly why they have lobbied so hard against these rules. They have the potential of mirroring the Googles and Facebooks of the world by providing advertisers with incredibly valuable data about their customers’ internet preferences.

People subscribe to ISP’s to gain access to the internet, and ISP’s are well paid to provide that service. Where people shop or browse once they have secured internet service is really no one’s business other than the user and whomever he or she is communicating with. An individual’s browsing and shopping history should not be for sale without the individual’s permission.