The unanimous vote to approve and issue the FTC staff report-an increasingly rare instance of bipartisan agreement on a major issue-does not necessarily signal consensus on further steps the FTC should take on the basis of the report. What The Staff Report Could Mean for ISPs
These practices include combining data from distinct services (e.g., video, web browsing, location, and connected devices) in a manner that consumers do not expect, as well as enabling third-party data uses that could harm consumers (e.g., targeting ads in a discriminatory manner, or making location data available to third parties “without reasonable protections”). Finally, FTC staff conclude that some of the practices observed among these ISPs could cause harm to consumers. The staff report concludes that ISPs collect and use personal data more extensively than consumers expect, do not provide clear disclosures about their practices, and generally provide opt-out choices that are difficult to use. According to the report, several ISPs combine data from across their product lines, though the report did not reach a conclusion about how extensively ISPs combine this data. They are also collecting customer information from other products and services they offer-such as voice, content, smart devices, advertising, and analytics-as well as purchasing information about consumers from data brokers. In addition, FTC staff determined that several ISPs in the study collect and use potentially sensitive, real-time location information for advertising. The staff report finds that “many” of the ISPs in the FTC’s study “have access to 100% of consumers’ unencrypted internet traffic,” potentially allowing the ISPs to obtain information about sensitive web browsing behavior. The staff report raises several concerns about ISPs’ practices, beyond generally equating ISPs with large advertising platforms, which include the following examples. consumers, their practices are not necessarily representative of ISPs in general. While this group of ISPs “represents a broad swath of the internet services offered” to U.S. The FTC compelled the companies to provide information about their data collection and use practices through orders issued under FTC Act Section 6(b) in March and August of 2019. The staff report is based on information the FTC obtained from the country’s six largest ISPs and three of their adtech companies. Commissioner Christine Wilson, however, stated that “oversight of ISPs for privacy and data security issues should remain at the FTC.” ISPs’ data practices – and the broader question of whether the FCC should reclassify broadband service back to a Title II telecommunications service and re-impose strict broadband privacy rules – are likely to be prominent issues as the Biden FCC takes shape in the months ahead. Chair Lina Khan and Commissioner Rebecca Kelly Slaughter declared that the FCC should play a leading role in overseeing ISPs’ data practices, citing the FCC’s industry expertise and legal authority. Members of the Commission, however, drew their own conclusions and articulated starkly different outlooks on the report’s implications. The Commission voted unanimously to release the report, which does not make any specific policy recommendations. What the FTC will do with the staff report is less clear. The staff report was based on orders issued in 2019 under Section 6(b) of the FTC Act and puts ISPs and large platforms on similar footing, observing that “many ISPs in our study can be at least as privacy-intrusive as large advertising platforms.” In addition, the staff report finds that several ISP data practices could cause harm to consumers but does not go as far as calling any practices unfair or deceptive. That respite may be coming to end following a staff report released last week by the FTC detailing the scope of ISPs’ data collection and use practices. Over the past few years, the data collection and use practices of Internet Service Providers (“ISPs”) have largely flown under the radar while large internet platforms and the broader adtech industry have been under greater scrutiny.