A Huge Victory for Online Privacy Advocates

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A Huge Victory for Online Privacy Advocates

As AT&T and Time Warner plan to merge, new FCC rules on broadband privacy show how today “Big Media” also means “Big Data.”

The FCC’s new privacy rules have triggered an outcry of alarm and opposition from corporate opponents.

The AT&T buyout of Time Warner is really about owning as much of our personal information as possible, whether it flows from our computer, our TV or — especially — from our mobile phones. It reveals the goal of the next generation of Big Media mergers: bringing together under a single entity massive broadband network connections and vast production and content capabilities, along with sophisticated data-mining operations that deliver micro-targeted ads. AT&T and other large corporations want to profit by knowing what we buy, where we go, what we view and who we interact with — and to use powerful data analytics to (in their words) “monetize” our personal information. AT&T believes that by harvesting all of the data delivered to it as we view and interact with HBO’s Game of Thrones, CNN, Looney Tunes and other Time Warner brands, it will generate revenues and better position itself to rival — or partner with — Google and Facebook. It has a sizeable advantage to potentially deliver that goal, recently claiming that the company “owns 150 million screens across TV and mobile.” Those “screens,” of course, are really us — their subscribers and customers.

But potentially standing as an obstacle to the data-domination goals of this mega deal is last week’s decision by the Federal Communications Commission (FCC) requiring broadband internet service providers (ISPs) such as AT&T to begin protecting consumer privacy. The new ISP privacy rule, approved on a 3-2 partisan vote, is designed to help Americans escape from the explosion of commercial data-driven eavesdropping that is increasingly a feature of our online lives. Under the new policy (which will go into effect in about a year), ISPs will no longer be able to automatically use a significant amount of a person’s information on behalf of marketers and advertisers — unless they first secure the user’s informed consent (known as “opt-in”).

The key safeguard adopted by the FCC last week says that data about one’s health, finances, precise geolocation, children and — critically — information culled by ISPs monitoring our use of mobile “apps” and “web browsing,” must now be classified as “sensitive.” This will force ISPs such as Comcast, Verizon and AT&T, the key gatekeepers to our wired and wireless internet connections, to treat this data differently. The customer will be empowered to decide how this sensitive information can be used, if at all, by advertisers and others.

ISPs and data giants such as Google fought the FCC’s privacy plan, which was spearheaded by its chairman, Tom Wheeler. Until now, the digital media industry — which includes broadband companies, internet advertising-dependent giants and major marketers — had successfully blocked any law or regulation that would protect consumer privacy online. That’s because the ability to steal and sell other people’s data to fuel marketing and advertising has become one of the US’ most successful global businesses. Our companies — think especially Google and Facebook — have perfected the vast technological capabilities to do this well throughout the world.

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But privacy laws stand as a potential barrier to these plans, providing an all-too-rare opportunity for individuals and even governments to challenge what has become a core function of the internet. Nearly every moment of the day, corporations instantly harvest the abundance of information now available about consumers with their every click and search term request. So it’s no surprise that the country where much of the internet began, and which — through Silicon Valley — has helped shape its phenomenal growth, has been politically hostile to privacy advocates. The US lags behind the European Union, for example, where data protection is considered a fundamental human right. Proposals to regulate privacy in the US, including under President Obama, have largely been designed to protect the data industry.

Working with its powerful allies (including former congressman-turned-lobbyist Henry Waxman), Comcast, AT&T, Google and their supporters were able to force FCC Chairman Wheeler to scale back his initial proposal. That original plan didn’t rely on what is now an outdated way to protect consumers, by identifying only some of their information as “sensitive.” That traditionally has meant bank-account numbers and medical records. But recent advances in “Big Data” processing now enable the cataloguing of information that, while on its surface may appear to be innocuous, can actually reveal our financial and health status. Privacy advocates had hoped the FCC would be able to move privacy in the US into the 21st century by abandoning the antiquated “is-it-sensitive-or-not-sensitive?” data distinction. But the final decision kept that false dichotomy, although it did manage to define much more data about us as sensitive (including information derived from our use of search and mobile apps).

The FCC’s new privacy rules have triggered an outcry of alarm and opposition from opponents. The lobbying group representing Verizon, News Corp., Google and others charged that the FCC was “destabilizing the ad-supported internet economy.” The cable industry called the decision more “regulatory opportunism than reasoned policy… that abandons principles of fair competition.” USTelecom, which represents telephone companies, claimed that “classifying all web browsing as sensitive information… [is] a disservice” to consumers.” Not to be outdone, the trade group representing the most powerful US advertisers, the Association of National Advertisers, blasted the decision, calling it “unprecedented, misguided, counterproductive and potentially extremely harmful.” It promised to see the “rules undone,” whether by “court challenges or action on Capitol Hill to reverse this extreme overreach by the agency.”

As someone who helped get the FCC rules passed, my reaction to these and other industry-funded criticisms is that we (ACLU, Consumers Union, Public Knowledge and many others) must have done something right!

There will still be a lot of work to make these rules meaningful, including ensuring that phone and cable giants don’t mislead people into consenting to have all their personal information used for marketing. There are loopholes in these rules that will have to be closed. But the decision, as the trade publication Business Insider noted, is a “huge victory for privacy advocates.” It sets the stage to tackle those remaining powerful digital media companies left basically untouched by the decision — especially Google and Facebook. To rein in these Big Data corporate giants, Congress will need to act — something unlikely in the near term, to put it mildly. Still, we’ve taken a huge first step in this process.

Critically, the new privacy decision places attention on how the unconstrained growth of data surveillance technologies — led by our digital media companies — is fueling an unprecedented intrusion of commercial forces into our daily lives. This apparatus, which uses the latest advances in data technology (such as IBM’s Watson or the Oracle Data Management Platform) to automate the process of how we are observed and treated online — and even offline — poses a serious privacy challenge. Big Data is influencing the basic operations of our media and journalistic institutions, political campaigns and other key parts of our society — including health, financial and retail — and how they relate to us as individuals.

Whether the AT&T-Time Warner merger will be rejected by the Department of Justice antitrust division is uncertain. Despite a growing wave of opposition about the deal, it might pass muster by agreeing to a number of conditions, some of which should include how AT&T-Time Warner handles data (and can be based on, in part, the new FCC privacy rules).

The next administration will have to show the public it understands what must be done to prevent greater media — and data — consolidation. Twenty-first century media mergers are creating a new chokehold on competition and diversity of viewpoints by controlling the broadband pipes, the content and how all the data gathered from our devices can be used.

Programmers and online content providers (think independents, streaming video startups, minority-owned local media, etc.) that don’t have the same access to consumer data — what a person is interested in, for example, and where they go — won’t be nearly as competitive with AT&T once Ma Bell marries Bugs Bunny. That same data, however, exposes the public to a greater loss of privacy and more. As Big Media and Big Data further converge, state-of-the-art safeguards are required to ensure we are guaranteed both the robust flow of competing ideas and our personal privacy.

Jeff Chester

Jeff Chester is executive director of the Center for Digital Democracy, a Washington, DC, nonprofit group that helps hold accountable the digital media industry. Follow the CDD on Twitter: @digitaldemoc.

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