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Markkula Center for Applied Ethics

Stripping Away a Layer of Privacy Protection

What are the really unfair practices?

Irina Raicu

Irina Raicu is the director of the Internet Ethics program at the Markkula Center for Applied Ethics at Santa Clara University.  Views are her own.

Last week, the House of Representatives joined the Senate in overturning a set of rules that had been issued by the FCC under the Obama administration. Those rules would have required internet service providers (ISPs) to ask their customers to opt in if they were willing to allow information about them (for example their online browsing history) to be shared or sold to third parties (such as advertisers). All of the legislators who voted to eliminate the rule, in both the House and the Senate, were Republicans. On Monday, President Trump signed the measure into law, eliminating what would have been a layer of privacy protection for all Americans who use the internet.

Two of the arguments that have been made in opposition to the FCC’s rule are that it would have stifled “innovation” and that it would have been inconsistent with rules applied to other corporations that can also collect and sell or share their users’ personal information.

The first of those arguments can (and often is) made in response to any regulation. It also assumes, without proving, that “innovation” is a good in itself, and something that should always be encouraged. Of course, many innovations have proven to bring more harm than good. Simply holding up the talisman of “innovation” tells us very little.

As to the second argument, that seems to go not only to the benefits of consistency (which the repeal of the FCC’s rule fails to achieve, anyway): it has also been presented as an argument about fairness. If Google and Facebook are not required to ask for user opt-in for the sharing of user data, the argument goes, why should ISPs?

But fairness does not require equal or consistent treatment of entities that are not similarly situated. As many articles have pointed out, ISPs have access to much more detailed information about our online activities than search or social media companies do. Moreover, users can choose among search engines or social media platforms, and may even choose not to use any of those; they can’t, however, choose not to use an ISP if they want to get on the internet. And some areas of the country are only served by one ISP.

Moreover, companies like Google and Facebook monetize their users’ data through advertising but don’t otherwise charge their users for their services. ISP customers, however, will now pay both in money and in personal information (unless they understand the new transaction terms and then take the time to find and use the opt-out mechanisms that should be available to them).

So it would be fair to apply different rules to ISPs than we do to other types of businesses.

Ahead of the House vote, the Electronic Frontier Foundation published an article titled “Five Creepy Things Your ISP Could Do If Congress Repeals the FCC’s Privacy Protection.” It’s worth reading now, except that you will need to mentally change that headline to something like “Five Creepy Things Some ISPs Have Already Done and Are Now Free to Keep Doing, and How Those Impact Your Online Life.”

Especially in light of how little most internet users know about what data is collected about them and how that data is being used, there is nothing fair about those “creepy” practices.

In the wake of the vote, various publications report that anger is growing among internet users, and the privacy arms race continues—with the tech-savvy developing and implementing defensive tools to try to protect their online privacy. Even libraries are teaching their patrons about VPNs. But those of us who are less tech-savvy, or simply too busy with their everyday lives to take the time to implement their own privacy-protective measures, are left more vulnerable.

In Scientific American, a recent headline asks, “Is Trump’s FCC Redefining Public Interest as Business Interest?” In the article, Christopher Ali writes that “[o]ver the last 30 years, America’s communications regulators have moved away from focusing on society’s benefit, and toward an interpretation of the public interest as equivalent to what businesses want.” He adds that the move has been even more pronounced since the Trump administration took over and argues that this is part of a broader effort that undermines American media (and, in turn, American society):

Is it in the public’s interest to have an internet where ISPs can decide which websites load fastest? Is it in the public interest for AT&T to buy Time Warner, creating an even larger and more powerful media company? Is it in the public interest for incarcerated people and their families to pay exorbitant sums to speak to one another on the phone?

At a time when politicians (and some voters) are arguing that we need to run our government more “like a business,” how do we separate the business interests from the public interest? How do we make the case about broader societal benefits and privacy as a collective good?


Photo by miniyo73, used without modification under a Creative Commons license.

Apr 4, 2017

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