An effort is underway to significantly set back even the limited amount of government privacy oversight that currently takes place over commercial privacy in the United States. Tuesday the House Energy and Commerce Subcommittee on Commerce, Manufacturing and Trade held a hearing titled Federal Trade Commission Review and Outlook. At the hearing, FTC Commissioner Maureen Ohlhausen argued for the repeal of the communications common carrier exemption which would transfer regulatory power of telecommunications networks from the Federal Communications Commission (FCC) to the FTC. While this might sound innocuous enough, the rework could have serious implications for consumer privacy protections.
This proposal is not new; the transfer of regulatory authority is being pushed by a new lobbying group called “The 21st Century Privacy Coalition.” This group has been spearheaded by major telecommunications providers and headed by Washington insiders, including former chairman of the FTC Jon Leibowitz and former US Representative Mary Bono. Members include AT&T, Verizon, DirecTV, Comcast, Time Warner Cable, and CIT-The Wireless Association. The Coalition that internet privacy rules need to be simplified, and thus that a single regulatory agency should be responsible for all telecommunications oversight. The FTC would assume a role the FCC has traditionally held, namely providing oversight of telecommunications network intermediaries such as the phone, internet and cable providers the Coalition represents.
Sensitive information like call information and viewing habits already have strong protection from misuse by commercial providers (not to be confused with misuse by the NSA). Those protections should be modernized and extended to new areas like search term results, websites visited and other type of internet records. The danger is that instead the existing protections will be weakened under a sole FTC jurisdiction. A brief overview of the FCC’s and the FTC’s existing authority helps explain why.
Currently, under of the Telecommunications Act of 1996, telecommunications carriers, including phone and internet service providers, have a duty to protect consumers’ sensitive personal information (such as who customers call) to which they have access as a result of their position as network operators. This “customer proprietary network information” (“CPNI”) can only be disclosed with a customer’s express consent (opt-in). Prior to this law’s passage, telecommunications companies were able to sell this data to third party companies for marketing purposes. This law also enabled the FCC to impose security requirements on carriers’ disclosure of CPNI to customers over the telephone and online, whereby both law enforcement and the customers themselves must be notified of any security breaches involving CPNI.
Similarly, the subscriber privacy provisions of The Cable Communications Policy Act of 1984 (“The Cable Act”) established a highly protective notice and consent scheme, permitting cable television subscribers to know what a cable operator’s practices are and providing them an opportunity to limit the data collections and disclosures that the operator may make. Providers must again obtain opt-in consent and must also grant subscribers the right to inspect and correct errors in such data. Police must obtain a court order to access data and the law authorizes damages for companies that violate these provisions.
In contrast, , its privacy-related authority in the area of telecommunications is somewhat limited. It primarily involves monitoring internet companies’ privacy policies to make sure the companies keep any promises they make to users regarding when and where personal information and data will be shared, sold or otherwise exploited.
The FTC’s privacy policy paradigm (which is set forth in ) is familiar to all of us: internet companies post statements detailing their privacy practices and , and then, by visiting and using the site, the user either implicitly or explicitly agrees to the terms of the site. These privacy policies are often written in ways that allow the company to make broad use of the data, most recently demonstrated by Facebook’s newest round of , which make clear that a condition of using the service is that users must grant the company wide permission to use their personal information in advertising. As long as a company doesn't make any promises that it doesn't keep, the FTC has no way to safeguard consumer data on the web. That is why the FTC has urged Congress to “consider enacting ,” as “self-regulation has not gone far enough” to protect consumer data privacy from abusive data use practices online.
In short, if we transfer regulatory authority and telecommunications oversight from the FCC to the FTC, we will likely see an effort to treat the telecommunications companies in the same way as technology companies like Google and Facebook. The result would be the loss of a number of substantive protections in the process.
If changes are to be considered, they should be part of a discussion of a comprehensive overhaul of the data collection system. For example, we endorse network data protective legislation modeled on the Obama administration’s which was released in February 2013. The tenets of this report would provide a good foundation for improving consumers’ privacy safeguards online by making sure that the important goals of transparency, security, focused collection, and accountability are extended, not eliminated.
Learn More About the Issues on This Page
-
Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.