Double Trouble: Why Two Internet Privacy Enforcement Agencies Are Not Better Than One for Businesses or Consumers

By Cheperdak, Alison M. | Federal Communications Law Journal, May 2018 | Go to article overview

Double Trouble: Why Two Internet Privacy Enforcement Agencies Are Not Better Than One for Businesses or Consumers


Cheperdak, Alison M., Federal Communications Law Journal


TABLE OF CONTENTS  I.   INTRODUCTION                                               263 II.  BACKGROUND                                                 265      A. Components of the Internet                              265      B. FTC's Strong History of Internet Privacy Regulation     265      C. The FCC's New Role in Internet Privacy Regulation       267      D. The Major Impacts of Differing Consumer Consent         Models and Privacy Definitions                          269      E. The FCC and FTC Differ in Internet Privacy         Enforcement Practices                                   272      F. The FTC's Internet Privacy Regulation Stems From its         Longtime Leadership in Consumer Protection              274      G. Despite Apparent Intent, the FCC's Privacy Order         Stifles Innovation and Economic Growth, Ultimately         Harming Consumers                                       277         1. The Evolution of the Open Internet Order and its            Impact on ISP Privacy Rules                          280         2. The FTC has Long Been the Nation's Premier Privacy            and Data Security Enforcement Agency                 281         3. The Privacy Order Demonstrated the Expanded Scope            of the FCC's New Privacy Authority, Including a            Broader Definition of the Types of Data Needing            Special Protections                                  282         4. The Privacy Order Sets New Transparency and Notice            to Consumer Requirements for ISPs                    283      H. The Privacy Order Sets New Customer Choice and         Consent Rules, which Includes a Three-tiered Approach:         Opt-in, Opt-out, and Inferred Consent                   284      I. The Most Significant Difference Between the FCC's         Three-tiered Consent Framework and the FTC's Existing         Privacy and Data Security Guidelines is the Privacy         Order's Treatment of Web Browsing and Application         Usage History                                           284         1. The FTC's Online Privacy Rules are Designed to            Minimize the Burden on Consumers and Business,            Whereas the FCC's Approach Needlessly Creates a            Burden                                               286 III. ANALYSIS                                                   288      A. The FCC's Privacy Order Creates Confusion for         Customers                                               289      B. The FCC's Privacy Order is Unfair to Businesses         290      C. The FCC's Privacy Order is Not Helpful to Consumers     293      D. The FCC's Privacy Order is Significantly Costly to         Businesses and Consumers                                296      E. Appropriate Changes to Existing Privacy Regulation         Frameworks                                              297 IV.  CONCLUSION                                                 302 

I. INTRODUCTION

In 1890, a formative Harvard Law Review article developed "the basic principle of American privacy law" that privacy is the "right to be let alone." (1) Samuel D. Warren and Louis D. Brandeis' The Right to Privacy was published "in response to invasions of personal privacy caused by the technological [advances] of newspapers and photographs". (2) Much has changed since Warren and Brandeis' article influenced American privacy common law jurisprudence. (3) In the digital era, the right to privacy may be more appropriately characterized as "knowing what data is being collected and what is happening to it, having choices about how it is collected and used, and being confident that it is secure." (4) Given the ubiquitous nature of collection, retention, and dissemination of data in the digital age, appropriate privacy regulations are required. (5)

The Internet is critical to virtually all aspects of life throughout the U.S., especially economically and socially. (6) For instance, through the use of networked technologies, people are able to express themselves in infinite ways, establish "social connections, transact business, and organize politically. …

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Double Trouble: Why Two Internet Privacy Enforcement Agencies Are Not Better Than One for Businesses or Consumers
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