Could a battle of the privacy regulators be in the future?
As the Federal Communications Commission has waded deeper and deeper into the waters of privacy regulation, some are predicting that conflicts will arise with the Federal Trade Commission due to overlapping jurisdiction.
In February, the FCC approved a new net neutrality measure in a divided vote that relabeled broadband Internet as a utility similar to water, gas, and electricity and thereby as a telecommunications service rather than an information service under Title II of the Communications Act.
That move brought all broadband companies under the purview of the FCC and also paved the way for the first potential battlefield for the two agencies: privacy rules for Internet companies. FCC Commissioner Tom Wheeler indicated in July that his agency plans to issue a Notice of Proposed Rulemaking to begin the process of developing privacy rules applicable to broadband providers that would include limits on the collection, sharing, and use of consumer data that would require the addition of data breach notification terms, and mandate opt-in consent for certain actions.
Even Commission members recognize the possibility of conflict between the FTC and the FCC. At a recent luncheon held in Washington, D.C., FCC Commissioner Ajit Pai and FTC Commissioner Maureen Ohlhausen both expressed concern about the potential overlap and doctrinal confusion with both agencies engaging in privacy oversight.
Pai noted that the FCC’s push into privacy presents “tremendous potential for duplicative enforcement,” while Ohlhausen called the overlap a “big problem,” adding that the potential is in place for the FCC to expand its regulations to companies such as social networking sites and search engines as “edge providers” that would make the possibility of conflict even greater.
To watch a video of the discussion between Commissioners Pai and Ohlhausen, click here.
Why it matters: The turf war between the FTC and FCC remains hypothetical, for now, particularly as multiple parties have challenged the legality of the FCC’s net neutrality order. Should a court strike the order down, concerns about potential overlap in the area of privacy concerns would also be eliminated.