United States: Privacy And Security — How The 115th Congress' Repeal Of The FCC's New Privacy Rules Has Made Your Data Less Private And Decreased National Security

Last Updated: May 10 2017
Article by John F. Stephens

Between news reports featuring Russian-gate scandals, Syrian missile attacks and challenges to North Korea, one important news item went oddly underreported. That is the story about a loss of our privacy and security by the new Congress.

FCC's new privacy rules

In October 2016, the Federal Communications Commission passed new rules that would have required Internet Service Providers (ISPs) to obtain your permission to effectively invade your privacy rights. The rules would have kept providers such as Comcast and Time Warner Cable from monetizing personal information based upon browser history. This history may include activity such as your searches, shopping habits and even secret obsessions. ISPs can insert adware that is undetectable and tracks your traffic and records your browsing history. This generates valuable data for the ISP, maximizing its profits and leaving you vulnerable.

On October 27, 2016, in a 3-2 vote, the FCC approved new rules regarding how ISPs handle their customers' browsing history, mobile location data and other sensitive information generated by virtue of their customers' use of the internet.

The purpose of the new rules was to restrict ISPs' ability to share with advertisers and other third parties information collected from users. This was viewed by many as a big victory for privacy rights advocates. However, these rules are one of the more immediate victims of the November 8, 2016 election, which brought Republican control to both Congress and the White House.

The FCC's new rules effectively created some of the strongest privacy regulations for any segment of the technology and telecommunications industries and could have had significant impact on ISPs' ability to make a profit.

The new rules required an opt-in standard for third-party data uses. This is significant because historically in the U.S., privacy guidelines require only that users opt-out of data uses such as ad targeting based on behavioral data.

Also, not all internet entities were covered by the new FCC rules. The rules affected only companies that connect users to the internet, including Comcast, Verizon and Sprint. The rules did not apply to internet companies that have huge advertising businesses based on customer data, such as Facebook or Google. Those companies are regulated by the Federal Trade Commission (FTC). The result of the FCC's new rules would have been a revenue and power shift away from ISPs towards already internet giants.

The 115th Congress

In March of this year, the House and the Senate voted to overturn the not-yet-implemented FCC new privacy rules. This was considered a victory for ISPs, which argued against regulation since it disadvantaged them compared to non-ISPs.

Congress' action not only upsets privacy right advocates and impacts the privacy rights of individuals, but it also impacts cybersecurity for the entire nation. Although this didn't make a big splash in the news, it is important that the American public understand that not only is individual privacy compromised, but cybersecurity is weakened because privacy and security are linked together. Privacy is characterized by a control of access to information and security — by blocking the FCC's more stringent privacy rules, Congress has weakened cybersecurity for all Americans.

Security: ISPs have a bad track record on security

Your ISP continually collects huge amounts of data such as search results, places you visit on the internet (dates and times), how often you visit and how long you are on a particular site. This is your web browsing history. ISPs also record financial and personal information or data via your transactions on the web through your browser.

ISPs do not have a great track record of keeping information safe. In fact, there have been a number of high-profile breaches such as the AOL breach involving the data of more than 500 million users. Recently, Comcast suffered a large breach of information involving the data for almost 600 thousand users. The new rules would have required ISPs to obtain opt-in to provide your information to third parties. This would have reduced the now treasure trove of data held by the ISPs, thereby reducing the exposure to a breach of personal data.

In addition to obtaining credit card and other financial data, hackers can pinpoint the browser history of each individual which may be used as blackmail against that individual.

Insertion of adware and spyware weaken security

A number of ISPs insert adware and spyware into their browsers, which generates targeted advertising. For purposes of this article, we will refer to adware and spyware, which are not very different in terms of invasiveness or functionality, as just adware. ISPs insert adware into browsers that analyze browsing history in order to customize ads specifically for you.

The insertion of adware into a browser is a major threat to cybersecurity because inserting new code into a webpage could break the security of that page. The new FCC privacy rules would have ended this practice. In basic terms of security, hackers take advantage of this security weakness in the insertion process to break into sites and applications that you use. It gives hackers an easy way in.

A related security issue comes from ISPs installing adware into devices, such as a mobile phone, which most of us purchase directly from the service provider as part of a service agreement. In the past, ISPs have justified the installation of adware on the basis that it was to improve the wireless network service and performance. After a lot of blowback, ISPs backed down on pushing the adware application. ISPs will likely revert back to placing adware on mobile devices since the Congressional repeal of the FCC privacy rules effectively removes the FCC as a privacy watchdog. And adware can record virtually all of your phone functions, including systems logs apps usage and other communications. Any adept hacker can utilize interception of the adware and obtain sensitive information such as usernames and passwords without having to do much in the way of sophisticated hacking. A hacker can hijack your phone entirely and access almost anything including your contacts, phone numbers and call history logs.

Conclusion

The Congressional repeal of the FCC privacy rules will have security implications far beyond what was ever envisioned or intended. Without these privacy rules, ISPs will continue with impunity to sell user browser data and will likely resume dangerous practices such as inserting adware into mobile devices. Since there is no opt-in requirement, many consumers are unaware of these issues. Most users simply ignore or click through agreements without being aware of what is happening behind the scenes. The negative security implications of the repeal of the FCC rules are far reaching and have long-lasting implications for personal privacy and national security. The end result is simple — repealing the FCC's privacy rules will not just be a disaster for Americans' privacy, it will be disaster for America's cybersecurity, too.

Originally published on Law360, April 26, 2017. Posted with permission.(subscription required)

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.

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