On April 8, 2009, the Federal Communications Commission (“FCC” or “Commission”) released a Notice of Inquiry regarding a national broadband plan.1 Congress has directed the FCC, through the American Recovery and Reinvestment Act, to develop a national broadband plan that will enable the build-out and utilization of high-speed broadband infrastructure.2 The FCC must provide its plan to Congress by February 17, 2010.

To assist the FCC in the development of its national broadband plan, the Commission is seeking public comments by June 8, 2009, on a variety of issues, including: (1) effective and efficient ways to ensure broadband access for all Americans; (2) strategies for affordability and maximum utilization of broadband; (3) evaluation of broadband deployment; and (4) how to use broadband to advance a number of national purposes. Regarding privacy specifically, the Commission has indicated that it intends to evaluate the role that consumer privacy plays in the deployment and adoption of broadband services and technology. The Commission has focused on behavioral advertising and the use of deep packet inspection (“DPI”) technologies to deliver advertisements relevant to consumers’ web use. The FCC is considering the appropriate approach to address such privacy issues, and has asked whether it should recommend specific mechanisms or if industry self-regulation could sufficiently address privacy concerns. In examining these privacy issues, the Commission has asked how it should approach issues such as DPI and behavioral advertising when crafting the national broadband plan. The FCC has queried whether such practices hinder consumer adoption of broadband services or discourage consumers from accessing lawful content due to a fear that the access may be tracked or revealed. To better understand how privacy issues impact broadband deployment, the Commission is seeking comments on the following broad privacy-related issues:

  • What are consumers’ expectations of privacy when using broadband services or technology?
  • What impact do privacy concerns have on broadband adoption and use?
  • Should the Commission address issues unique to the Internet, such as potential privacy and security concerns associated with cloud computing?
  • Can application providers encourage use of broadband-enabled services (e.g., photo sharing, online bill payment, social networking, and remote data storage) by offering privacy protection?
  • What effect do data storage policies have on the use of broadband technologies?
  • How do innovation and technological advancements impact consumer welfare?
  • How should the Commission account for security issues in its plan?