On March 16, 2010, the Federal Communications Commission (“FCC”) issued its long-awaited report to Congress on expanding broadband Internet access in the United States.1 Among a host of other topics, the National Broadband Plan (“Plan”) addresses privacy issues in the context of online application development and use.  

I. Overview of the Plan

The introductory chapters of the Plan review the FCC’s goals in issuing the Plan and the current state of the broadband ecosystem. Next, the chapters in the Plan’s first major section discuss recommendations to spur competition as a way of fostering investment and innovation. These recommendations span innovation policy, research and development, spectrum, and infrastructure. The Plan’s second section, on inclusion, addresses how to expand broadband access to interested customers and barriers to such expansion. The final section of the Plan sets out the FCC’s views and recommendations in specific policy areas: health care, education, energy and the environment, economic opportunity, government performance, civic engagement, and public safety. This section closes with a chapter on implementation and progress benchmarks.

II. Privacy Recommendations

The FCC’s privacy recommendations appear in the Plan’s fourth chapter on “Broadband Competition and Innovation Policy,” in a subsection focusing on online applications. The FCC takes up privacy issues here on the ground that “[t]he collection, aggregation, and analysis of personal information are common threads among, and enablers of, many application related innovations.”2 The FCC’s Plan acknowledges the consumer benefits of the use of personal information as a driver of Internet innovation. In particular, the Plan discusses the uses of data to target relevant advertising, customize services, and lower the cost to consumers of applications and content. However, the FCC also suggests that the growing importance of data may hinder competition by disadvantaging firms that have not aggregated as much consumer data.

The FCC offers several specific recommendations that address online data collection and usage issues, including comments directed at Congress, the Federal Trade Commission (“FTC”), and other federal agencies. These recommendations are as follows:

  • Recommendation 4.14: Congress, the FTC, and the FCC should consider clarifying the relationship between users and their online profiles. In connection with this recommendation, the FCC poses several questions:
    • What obligations do firms that collect, analyze, or monetize personal data or create digital profiles of individuals have to consumers in terms of data sharing, collection, storage, safeguarding, and accountability?
    • What, if any, new obligations should firms have to transparently disclose their use of, access to, and retention of personal data?
    • How can informed consent principles be applied to personal data usage and disclosures?
  • Recommendation 4.15: Congress should consider helping spur development of trusted “identity providers” to assist consumers in managing their data in a manner that maximizes the privacy and security of the information.
  • Recommendation 4.16: The FCC and FTC should jointly develop principles to require that customers provide informed consent before broadband service providers share certain types of information with third parties.
  • Recommendation 4.17: The federal government, led by the FTC, should put additional resources into combating identity theft and fraud, and help consumers access and utilize those resources, including bolstering existing solutions such as OnGuard Online.
    • Specifically, the FCC recommends that the government:
    • Put more resources into OnGuard Online;
    • Maintain and publicize a database of agencies with responsibility for identity theft and fraud information;
    • Continue education efforts around identity theft and fraud; and
    • Encourage broadband service providers to link to OnGuard Online.
  • Recommendation 4.18: FCC consumer online security efforts should support broader national online security policy, and should be coordinated with the Department of Homeland Security, the FTC, the White House Cyber Office and other agencies. Federal agencies should connect their existing websites to OnGuard Online to provide clear consumer online security information and direction.
  • Recommendation 4.19: The federal government should create an interagency working group to coordinate child online safety and literacy work, facilitate information sharing, ensure consistent messaging and outreach, and evaluate the effectiveness of governmental efforts. The working group should consider launching a national education and outreach campaign involving governments, schools and caregivers.
  • Recommendation 4.20: The federal government should investigate establishing a national framework for digital goods and services taxation.