The FTC on Thursday unveiled a report highlighting that internet service providers — the companies that get you online at home or on your phone — need to be at least as much a part of the privacy conversation as Facebook… even if the government appears hamstrung in overseeing their practices.
"Many ISP's in our study can be at least as privacy-intrusive as large advertising platforms," FTC attorney Andrea Arias said, announcing the findings of the study on AT&T, Verizon, Comcast, Google Fiber and T-Mobile as well as some of their advertising affiliates.
The report, which was based on 2019 information demands and public reporting, details how some of the companies make use of extensive granular user data, including mobile app usage, web browsing, search contents and more. The companies use the data to provide certain services as well as for advertising, sometimes collecting more than appeared necessary to supply services. Notably, the companies disclose very little to consumers about how their information is used.
The FTC also found that ISPs often combine customer data from across business lines, products and services, pulling together information from broadband businesses with information from other divisions such as TV, home security or even wearables.
Some of the broadband providers covered in the report also shared users' real-time location data with third parties, which could go to those giving medical assistance but sometimes ends up in the hands of others, such as bounty hunters. Some of the broadband providers also grouped consumers together for advertising purposes using sensitive characteristics such as religion, ethnicity or political affiliation, or proxies for them. Segments included "pro-choice," "African-American," "Jewish," "Asian Achievers," "Gospel and Grits" and more, the report found.
The FTC did not name which companies engaged in which practices and made clear that not every company was engaged in every tactic in the report. Some details in the report had already emerged in public reporting.
Several of the ways ISPs collect data may concern users, the report suggests, including the combining of several data streams as well as ISPs' ability to ignore user settings in browsers and apps that may block some tracking.
Any concern that users might have about these practices, however, likely falls into a regulatory black hole. In most cases, the FCC, rather than the FTC, regulates broadband service. In late 2016, the FCC adopted a rule that would limit the ways in which ISPs could collect and use customers' personal data. Early on in the Trump administration, however, Congress annulled that rule using a procedure that also prohibits the agency from reissuing any substantially similar rule in the future.
Even if the two Democrats on the FCC wanted to take another stab at ISP privacy and tried to formulate new, highly original regulations, the commission is still facing political gridlock because of President Biden's nearly unprecedented delay in naming a chair to the agency. With four commissioners in place — split evenly among party lines — any such rule is unlikely at best to win a majority vote. In addition, a long further delay could actually put the Republicans into the majority on the commission because Jessica Rosenworcel, the acting chair, must leave by the end of the year unless she's renominated and confirmed.
That leaves the FTC, which has the power to enforce laws against companies that engage in deceptive or misleading business practices. That, to date, has made it the country's de facto federal privacy regulator. The agency has also reportedly been mulling over new rules on digital privacy overall.
But the FTC is busy. Under chair Lina Khan, the FTC has taken up a time- and resource-intensive agenda that also is aiming for broader enforcement of both monopolization and mergers, additional rules governing industries and more. That may leave little room to try to oversee industries like internet service that theoretically already have a dedicated regulator — although former FCC chair Ajit Pai, a Republican who oversaw and applauded the rollback of the privacy rule, said at the time that privacy should fall under the FTC's auspices.
The FTC is also currently politically split as well, although Biden has nominated a third Democrat to join the commission pending approval from the Senate.
"The Federal Communications Commission has the clearest legal authority and expertise to fully oversee internet service providers," Khan said after Arias detailed the report's findings. "I fully support efforts to reassert that authority."
