The FCC’s Privacy Foray: Privacy Regulation Under Title II

The ill-advised classification of broadband as a Title II telecommunication service triggers a cascading series of additional proceedings to sort through the wide-ranging implications of this radical shift in policy. Prominent among these is the treatment of customer proprietary network information (CPNI) by broadband access providers. In the workshops and proceedings to come, we must recognize that broadband network data is fundamentally different than the CPNI of the legacy telephone network that the Communications Act imagined. The increased functionality and value this type of data offers should encourage regulators to allow room for a flexible, voluntary framework to grow atop baseline expectations of privacy. While many aspects of this issue remain to be explored, we should generally prefer transparent and visible “opt-out” mechanisms over a rigid regime that would make it hard to use data effectively.