Without government regulation, some have argued, the Internet is like the Wild West.
The idea is to paint the Internet and the innovators who provide access to it, as living in an untamed and unregulated environment. If the innovators have free rein, then they will inevitably trample all over the individuals who use the Internet.
This analogy, though, is completely false. Innovators providing access to the Internet, along with forward-thinking entrepreneurs who created new services through the Internet, were subject to state and federal regulation before the Federal Communications Commission's Open Internet Order of 2015. The OIO reclassified broadband services, or Internet access services, as Title II common carriers, subjecting them to federal government micromanagement. Before the OIO, the Federal Trade Commission, state attorneys general and state consumer protection agencies worked together to protect online consumers.
The OIO overturned this well-established order and created the need for the FCC to tackle areas in which it has no experience. There is a legitimate concern about a lack of regulation, but the regulatory gap is the result of Chairman Wheeler's FCC pushing into areas better left to other federal agencies.
Several activists have argued Internet Service Providers will be free to do whatever they want, from selling consumer information to blocking sites, such as YouTube or Netflix, when the FCC revokes the OIO. The reality is the OIO is one of the main barriers to effective regulation.
Going back to the 1970s, the FTC has a long list of cases enforcing privacy and data security rules against unscrupulous companies. Congress has charged the FTC with carrying out laws like Gramm-Leach-Bliley, which protects financial privacy, or the Children's Online Privacy Protection Act, which sets rules for how companies can use minors' data. The FTC is the only federal entity with the institutional experience to protect Americans' online privacy.
Many states have laws more stringent than federal standards to protect consumers. For example, California's Reader Privacy Act requires a warrant for government agencies to get access to e-reader information, including details like which pages an individual has read. Taken together, these interlocking state and federal institutions are a powerful defense against potentially abusive behavior.
Unfortunately, the FCC's power grab switching ISPs to Title II created a loophole in privacy enforcement. Title II regulates "common carriers" with heavy-handed rules designed for Ma Bell, not modern broadband companies. The FTC does not have authority over common carriers. When the OIO was issued, it removed ISPs from FTC jurisdiction — that is, the FTC could no longer bring enforcement actions against ISPs that violated consumer privacy, agreements with customers or certain standards of appropriate corporate conduct.
The OIO had a nearly immediate impact, as the 9th Circuit initially dismissed a case the FTC filed against AT&T because of the new classification. This decision applied not only to AT&T's ISP business but also to most other consumer-facing operations. The ruling potentially means a company classified as a common carrier because of its ISP segment which also owns, for example, a media business, could not be regulated by the FTC or the FCC. Although the Ninth Circuit has agreed to rehear the case en banc, the loophole persists.
This loophole illustrates the need to ensure America's experienced consumer protection agency fulfills its role. As FCC Chairman Ajit Pai and FTC acting Chairman Maureen Ohlhausen wrote in an April op-ed, "We need to put the nation's most experienced and expert privacy cop back on the beat, and we need to end the uncertainty and confusion that was created in 2015 when the FCC intruded in this space."
Backers of Title II Internet regulation are forcing the government into a dilemma: Either allow the current, two-year-old classification of the internet as a common carrier to stand, or accept that Title II classification blocks regulators and needs to be reversed.
Even if there were any truth to the idea the Internet is like the Wild West, shouldn't Americans have the right sheriff watching out for them? Through the OIO, the FCC appeared in town and claimed authority to regulate territory it doesn't know. Before Title II reclassification, there were plenty of common sense rules to protect American consumers. Those rules that existed before the OIO will come back into effect when it is reversed.
Which is to say, a return to light-touch regulation will put the sheriff's star back on the right commission for the job.
Daniel Oglesby is a University of Florida alumnus who conducts research for the Communications and Technology Task Force at the American Legislative Exchange Council (ALEC).
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