United States: FTC Staff Tackle FCC Privacy Rules in Public Comment

As the Federal Communications Commission sifts through over 50,000 comments received in response to its proposed broadband privacy rules, the Federal Trade Commission's comments are likely to stand as a highlight. In a 36-page document, FTC staff outline the FTC's past privacy work and respond to a number of specific issues in the proposed rulemaking, including how personally identifiable information is defined, the structure of privacy notices, the role of consumer notice and choice in various business practices, and the proposed regulations on data security and breach notification.

The major headline from the FTC's comments is the continued recognition that the proposed rules would impose a number of specific requirements to Internet service providers—or "broadband Internet access services" ("BIAS") providers—that would not apply to other members of the Internet ecosystem. "This outcome is not optimal," the comments declare, calling once again for Congress to pass baseline privacy, data security, and data breach notification laws that would apply across industries.

Nevertheless, the FTC staff's comments generally support the FCC's proposed rules and commend its "focus on transparency, consumer choice, and data security." The staff's comments present an array of recommendations intended to address these three core issues and to otherwise strengthen the privacy protections envisioned by the FCC. These recommendations include:

  • Defining "Personally Identifiable Information" ("PII"): Due to "advances in technology [that] provide companies with the ability to identify consumers by combining disparate pieces of data," the FTC staff agrees that the FCC's definition of PII should "not be confined to information that is already linked to an individual." However, the comments note that the proposal to include any and all data that is "linkable" to a consumer could unnecessarily limit the use of data that does not pose a risk to consumers. "[I]t is appropriate to consider whether such a link is practical or likely in light of current technology," the comments state, recommending that the FCC define PII to only include information that is "reasonably" linkable to an individual. The FTC staff further recommends that the FCC consider tying "reasonable linkability" to both individuals and their devices to better capture persistent identifiers like cookies, IP addresses, MAC addresses, and unique device identifiers.
  • Promoting Better Privacy Notices: The FTC staff suggests that developing a standardized or "model" notice could help to achieve the FCC's goals of clarity, brevity, and comparability in BIAS privacy notices. The comments cite not just the inter-agency development of the model privacy form under the Gramm-Leach-Bliley Act but also the FCC's approach to developing broadband pricing labels to support this approach.
  • Offering Choice to Consumers: The FTC staff note that the proposed rules make it unclear whether BIAS providers must offer consumer choices "at the time of sign-up, at a point when the consumer first goes online, or at a point when the BIAS provider shares a consumer's data with an affiliate or third party." The comments recommend that consumers be presented choices "at sign-up" in a way that is "unavoidable, short and simple, on their own separate screen, and easy to exercise."
  • Requiring an Opt-In for Sensitive Information: The comments emphasize that the FTC's longstanding approach to consumer choice has focused on collection and use consistent with the context of a consumer's interaction with a company and the consumer's reasonable expectations, and as a result, the FTC supports the use of opt-in for sensitive information such as: (1) content of communications and (2) Social Security numbers or health, financial, children's, or precise geolocation data.
  • Distinguishing Between First-party and Affiliate Marketing of Communications-related Services and Other First-party Use and Third-party Sharing: While the FTC concedes that this approach establishes a "bright line" rule for industry compliance, the staff's comments argue that the FCC's approach "does not reflect the different expectations and concerns that consumers have for sensitive and non-sensitive data." The FTC staff further recommends that the FCC treat affiliates like third parties "unless the affiliate relationship is clear to consumers."
  • Ensuring Reasonable Data Security: The FTC staff is largely supportive of the approach to data security set forth in the proposed rules, though the staff cautions that the proposed rule text would impose strict liability on BIAS providers for "ensuring" security. The comments propose modifying the language in the proposed rules to require companies to "ensure the reasonable security, confidentiality, and integrity of all customer PII."

In a statement supporting the FTC staff's comments, FTC Commissioner Maureen Ohlhausen wrote separately to "emphasize the differences between the FTC's approach and the proposed FCC approach to consumer privacy and to warn that the FCC's approach may not best serve consumers' interests."

She argues that the FTC's approach to privacy focuses on the sensitivity of consumer data, while the FCC's proposed framework emphasizes what type of entity collects or uses data such as BIAS providers, affiliates, or third parties. According to Commissioner Ohlhausen, defaults "should match typical consumer preferences, which means they impose the time and effort of making an active decision on those who value the choice most highly." She pegs this calculus to the sensitivity of information, arguing that advertising generally would suggest an opt-out approach while uses of sensitive data would require an opt-in choice, and argues that FCC's current three-tiered "implied consent / opt-out / opt-in" approach would require opt-in consent for many uses of non-sensitive information and "would require no consent at all for certain uses of sensitive data."

Finally, Commissioner Ohlhausen states that FCC's proposed rule "mischaracterizes" the FTC's findings with respect to discounts or "financial inducement practices." She rejects the notion that the FTC's January 2016 Big Data Report supports the argument that certain advertising-based business models can unfairly disadvantage low income or other vulnerable populations. Instead, she writes, bans on ad-supported broadband services prohibit even fully informed consumers from trading their data for a price discount and may harm broadband adoption.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions