Hacker News Reader

The FTC did regulate ISPs, until they sued AT&T over their "unlimited" claims and lost in appeal. In losing, they actually lost the ability to regulate ISPs at all. AT&T wanted this. Here's the ruling: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/29/1...

Seeing this coming, FCC proposed privacy rules around the same time: https://apps.fcc.gov/edocs_public/attachmatch/FCC-16-39A1_Rc...

Which did go into effect on January 3rd: https://www.federalregister.gov/documents/2016/12/02/2016-28...

Among the privacy requirements, there are also mandatory breach notifications.

The industry's response is here: https://www.washingtonpost.com/blogs/the-switch/files/2017/0... . They complained about the breach requirements, and also claimed the difference between them being opt-in for advertising profiling vs Google et al being opt-out violated their First Amendment rights.

A coalition of Internet advertisers filed a similar response: http://ana.net/getfile/24564 . Here, they claim another First Amendment conflict with: "The creation, analysis, and transfer of consumer data for marketing purposes constitutes speech"

So yes, please dig deeper. This is a year-long end to a battle that AT&T successfully opened up in their appeal. It's over; the ISPs won, at the expense of individual American privacy.

Selling your customers’ private browsing data constitutes speech… Wow. Just wow.

Yeah that statement makes it sound like everyone is using their browser in a public park on a 60' projector making it available for the ISP to sell.

Thanks for posting this -- very informative!

That decision seems insanely broad; there's nothing in there that prevents AT&T from buying a breakfast cereal company and selling corn flakes that claim each 1 pound box contains 80 pounds of cereal and will make you live forever.

At the same time, it doesn't seem to apply to ISP broadly; only ISPs that qualify as common carriers. Although the definition of common carrier seems overly broad itself, according to [1], even pointing out that Disney is a common carrier because their roller coasters in their theme parks carry passengers [2].

Has any attempt been made to amend either the FTC acts or the FCC acts to clarify the extent to which entities are classified as common carriers only as regards to those activities which meet the definition?

[1] https://en.wikipedia.org/wiki/Common_carrier

[2] Gomez v. Superior Court (Walt Disney Co.) (2005) 35 C4th 1125, http://online.ceb.com/calcases/C4/35C4t1125.htm

Also, from a closer look at the Federal Register, it does not appear that the regulations went into effect in any meaningful way -- the sections excluded from that effective data are _all_ of the relevant regulations.

See my comment below https://news.ycombinator.com/item?id=13986192

I don't understand why people like yourself have to try to reframe and deflect attention on everything to fit your political narrative. Why can't you just see the problem for what it is and hold the representatives with your political affiliation accountable? Who really cares who our "traditional" privacy regulator is if neither of them end up able/willing to do the regulating? Why are you trying to frame this as a mistake made by the "previous president" when every single vote cast to repeal the only possible legal barrier to the commoditization of the internet activity of US citizens was cast by house/senate republicans? Are you perhaps suggesting that republicans would be the ones behind pushing a law through congress protecting internet privacy? I cannot comprehend how you can rationalize this (UM ACTUALLY... THIS IS OBAMA'S FAULT!) drivel in your head without some serious cognitive dissonance

He's quoting a woman that accepted more than 650k from ISPs for reelection campaigns.

Because the truth matters. You're reacting to this based on the politically spun narrative that was fed to you when you first encountered the issue. The truth is actually a fair bit more complex.

This is a case of a regulatory agency overstepping its bounds and seizing jurisdiction outside of the domain allowed for it by Congress. That's the language in which the bill is framed, the the way in which it has been discussed in the past weeks and months that is has gotten (minimal) coverage.

Then the issue got picked up and spun when somebody called attention to the fact that the FCC's regulations (which they were not authorized to make) were more consumer-friendly than the FTC's. That's true, and it's a real problem. But that does not mean that the answer is to sanction the FCC's power-grab here. The right thing to do is to pursue consumer regulatory protections _within the confines of the law_, which means either petitioning the FTC or new legislation.

Don't confuse concern over process with favoring the resulting outcomes.

The FTC previously proposed essentially this same rule and was shot down by the courts as not having authority.

Do you have a link or further information on this?

The Ninth Circuit ruled that the FTC had no authority to regulate common carriers: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/29/1...

That's interesting. But wouldn't it be better to pass a law to do this, rather than relying an executive agency's regulations, which may change at their will and be interpreted as they please each time the government changes hands?

It would be lovely for Congress to pass a statute ensuring data-privacy. Pity they just voted the other way around on party lines.

... did you read the thread you are replying to?

Because this is not an individual but rather shill for ISP trying to push a narrative.

ISPs should be classified as modern utilities. They are trying to be the infrastructure provider while being regulated like the business' that consume the infrastructure. But they don't want to be classified as such because of the burden of regulations this would inherit.

I've yet to meet someone in life that thinks that their internet provider should be able to sell all information about their activities (while charging for the service).

You can't just say the regulations are old and therefore invalid because they're old.

Remember, the telephone industry was regulated because telephone companies merged and cooperated to create regional monopolies and destroy competition, all at the expense of consumers. Comcast, Time Warner and the like have all been doing the same.

You also can't just say that the internet is the same as POTS.

The FCC has scarcely been better than these companies. It has a history of being a revolving door for companies. Consider what RCA/FCC did to Armstrong back in the day.

https://en.wikipedia.org/wiki/Edwin_Howard_Armstrong

Just because the FCC does something doesn't mean its good, legal, or whatever. It's just what 3 of 5 unelected, unaccountable appointees cooked up. When the board changes, they can just as easily uncook it up.

With regards to this, I absolutely can.

You bring up a good point that many people might not have realized: relying on the FCC to regulate solely without the backing of legislation will not result in the kind of long-term stable regulations and consumer protections that we are looking for because what the FCC decides to do could change on a dime whenever the administration changes.

The FCC did have the backing of legislation, which is why it took an act of Congress to overturn it.

It had the backing of legislation to do whatever it wanted, leading to instability of regulation.

This law was written to prevent an overstep of a non legislative body's ability to legislate.

It's true the outcome sucks in this case, but that doesn't mean it wasn't the right thing to do from a balance of power perspective.

> It's true the outcome sucks in this case, but that doesn't mean it wasn't the right thing to do from a balance of power perspective.

HN, the only place on the internet for thoughtful/rational political discourse.

This is the only place I've seen having this conversation. That actually questioned the utility of the agencies to follow out the intended goal and whether this is the best policy to do thee job. It's sad it's not even being tapped on by the newspapers, even as an aside to their doomsday headlines they love to stir up.

As Thomas Sowell said: "Economics is not about hopes and good intentions, it's about cause and effect". The same applies to regulatory policy.

> It had the backing of legislation to do whatever it wanted, leading to instability of regulation.

This makes no sense. It's not true, for one thing--the FCC cannot "do whatever it wants." And independent rulemaking is the entire point of creating an independent federal regulatory agency in the first place.

Calling it a "regulatory overstep" is fine as a means of expressing an opinion about this rule, but the rule was legally promulgated. Again: that's why it took an act of Congress to reverse. Illegal rules get reversed in court.

I understand that a phone connection is different from an internet connection. But I couldn't think of two more similar industries. Wasn't dial-up,the first real consumer internet delivered through via telephone lines and switches?

More importantly, at the backbone level, the phone system has been run through the same type of SONET fiber optic networks as the internet for the last couple of decades, at least. In most cases the only reasons the two were isolated from one another were: - phone traffic was considered higher priority if an outage occurred (it used to be, but probably not any longer) - regulations on the internet (especially as pertains to giving access to ISPs, such as the cable companies) giving the phone companies incentive to segregate the two as much as possible

Another point regarding the consolidation of the two industries comes in the form of most of the cable companies now delivering home phone service through the internet.

POTS == Plain Old Telephone Service for those who didn't recognize the acronym

The FCC's reclassification of ISPs under Title II does not assume the internet is the same POTS. It's a classification, not an equivalance.

The national infrastructure for the internet and POTS is the same, and has been since the mid-1990s, if not always. Internet PoP sites and telephone PoP sites in the U.S. are housed in the same building, usually in the same rack. The fiber was run in separate trays and they used slightly different equipment for each (OC-48 vs. OC-192 in the mid-1990s), but at least from that point on the primary difference between POTS and internet has been that POTS usually runs through a slightly lower-bandwidth version of the same system. The same people built, maintained, and upgraded the cables and equipment on the backbone, whether it was POTS or internet. It's still run primarily by Level 3 (which swallowed up most of the companies that built it, or the infrastructure and employees that survived or spun out of those companies) and AT&T, and many of the fiber runs across the country are still marked with MCI's logo.

I don't think the FCC is the best place to fix the problems with the internet, but I don't see the "repeal and don't fix" method that seems to be so popular with the Republicans lately as a better way to deal with it.

As a communication mechanism I can say that some of the rules will likely apply.

Oh look, more whataboutism.

Well, calling them "old" is silly because these privacy improvements never went into effect.

Referring to this privacy exposure as "something that may/will happen because of Trump" ignores that it is already Federal law and has been since 2015. Yes, in removing FTC authority over broadband, the Obama administration created this privacy exposure in the first place. That tap wouldn't shut off until next December at the earliest if the current administration did nothing.

That privacy ship has sailed. Broadband providers can have been sucking this data up for over two years by the time this particular Obama regulation would kick in, even if left as was. The Obama administration could have timed the FTC authority removal to not happen until replacement protections were in place, but, no.

The EFF is oddly silent about why they've been so oddly silent about this exposure for over a year now. Their partisanship is showing.

The court decision (it was a court interpretation, not a particular executive action that led to the FTC's authority being removed) dates from August, 2016, and only applied to the 9th circuit. See https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/29/1... (The case was the FTC suing to prevent AT&T conducting data-throttling to customers who had bought unlimited data plans. AT&T claimed that the FTC no longer had jurisdiction, and the court agreed.

Given that circuit split, it's unlikely -- no matter how evil you imagine ISPs to be -- that they would start scooping up data and selling it immediately, and only in a narrow set of States. The FCC regulation was an attempt to restore an existing privacy situation, across the whole of the US market.

Again, it's extremely unlikely that with an impending privacy regulation being imposed, ISPs would proceed with monetising user browser histories for a short period of time before they were once again vulnerable to regulatory penalties for doing so.

If I may be less than oddly silent, I think we (EFF) didn't talk about this much because it seemed like various parts of the USG were (slowly) moving to fix a problem that came out of a court decision that could have gone either way.

You can read a little bit more about our work during the Obama administration (and before) on net neutrality here: https://www.eff.org/deeplinks/2014/07/deep-dive-defense-neut... . One of the points we talked about during that administration, and this one, is the risk of FCC over-regulation, and regulatory capture. If you want to view these challenges in a public choice theory (ie generally Republican) model -- at the FCC, the risk is largely one of ISP dominance, as it is traditionally the telcos that stand to benefit from investing in moving the FCC to their position. In this case, you actually have Congress stepping into to push them even more that way. That's a problem under a Democratic or Republican administration, which is why I think you saw more Republicans move to oppose the repeal than Democrats support it.

Actually no -- an obscure interpretation of a one off line in an unrelated law was used to prevent the FTC from regulating here. The FTC tried to regulate -- and was shot down because it was determined that FCC had authority. Then the proposals were re-worked through the FCC -- now the same people who claimed FTC didn't have regulatory authority are now claiming that FCC doesn't and FTC does. Not classic government overreach, classic right wing misdirection.

> These regulations were only voted on late in 2016 and never went into effect. To do the regulations, the FCC reclassified the internet as basically ye olde telephone system

You are conflating two different orders; the reclassification was part of the 2015 open internet order (and was expressly laid out as a legal option in the court decision striking down the 2010 open internet order), not the 2016 privacy order at issue here.

> They did a swipe at the jurisdiction of the Federal Trade Commission, the FTC.

The FTC has no authority over even the non-telephone operations of the telephone companies who are many of the major ISPs.

> To do the regulations, the FCC reclassified the internet as basically ye olde telephone system, which then made it subject to their purview based on laws created in the 1930s. This is classic overreach. Congress never gave this authority to the FCC and is acting to put them back in line with the law.

It was the FCC that decided in the first place to classify ISPs as information services rather than common carriers. They have the authority from Congress to do that, and I'm aware of nothing in the laws that granted that authority that say that once the FCC makes such a classification they cannot later revisit that and change the classification.

> The lesson here really is that if the issue is really important, then get an actual law passed instead of trying to contort regulatory authority based on laws from the 1930s.

There have been several additions and amendments to the 1930s laws, such as the Telecommunication Act of 1996. It is disingenuous to suggest that the FCC is relying on 1930s laws for their authority.

nit: The previous president could certainly have done this, but chose not to. obscures the reality that the opposition party - and its grassroots supporters was ruthless in opposing all that Obama did, often for no apparent reason. For instance, the SCOTUS nominee. It was poor behavior, giving us "legislative debt", as it fostered executive action over legislative action.

Couple of issues here:

1. The opposing party's opposing the ruling party is a natural process of government. It's the normal state of things. Your saying that it was "poor behavior" implies that it was an anomaly, that the Republicans did something wrong by not supporting everything Obama wanted to do, and that the minority party is supposed to accede to every demand of the ruling party, which would be absurd.

2. The Democrats only controlled Congress for 2 of Obama's 8 years. You imply that, even when Congress is not controlled by the President's own party, that Congress should accede to his demands. This is absurd. It's not how our government works, it's not how it's ever worked, and it's not how it was intended to work--indeed, exactly the opposite is the case.

3. If your implications were true, you should be criticizing the Democrats for doing exactly the same thing right now with far more vehemence.

4. The ostensibly "grassroots supporters" of the current opposition is actually ruthless. Were there violent riots in the streets of cities across the country when Obama was elected?

Your comments that this isn't how the government was intended to work are spot on -- the founders did not want a two party system.

Of course, the math says that with the current voting system, any third party that emerges as a major force will always consume one of the existing major parties, leading the nation back to a two party system. I wonder why people always ignore this inconvenient theorem.

Most people don't understand that intuitively, I think.

To which theorem do you refer ...?

It's called Duverger's Law.

https://en.wikipedia.org/wiki/Duverger%27s_law

> the founders did not want a two party system.

Well, they said they didn't want a factional system, then they built rules which guaranteed two factions, modelled directly after rules which had done the same elsewhere, and all while organizing themselves into two factions which were visible in nascent form in the first national elections under the Constitution and well solidified by the time Washington was to be replaced as President.

So, do you listen to their words, or their actions? The founders were, to all evidence, a lot like politicians of today, publicly cursing the ills of partisanship while deeply engaged in it, mostly as a rhetorical device against the other party.

The problem with this line of reasoning is that it somehow assumes that if the FTC were still regulating this then the Republicans would have left it alone. And that's nonsense. It doesn't matter who is regulating it, what matters is that you have a certain privacy, and soon you won't. That's all this is about.

Procedural arguments are a way to avoid dealing with the substantive issue. The elephant in the room is that one political party thinks it's totally fine to exploit your information for as much commercial gain as can be mined from it.

I'm confused. If these rules that were repealed never went into effect, or only partially, does that mean that our data was already (or is currently) being sold?

Does this legislation explicitly condone the collection or sale of browsing data? (I'd still rather have the protection than not, but can't seem to find a good detailed explanation.)

  does that mean that our data was already (or is currently) being sold?

Probably. I doubt that broadband carriers would admit it publicly one way or the other.

They've been able to for at least 1.5 years, and counting.

Verizon has been doing this since at least 2012. It's sure as sh*t AT&T and others (not just mobile providers) are doing it as well.

> get an actual law passed ... the previous president could certainly have done this, but chose not to.

Right, the Republican Congress was very happy to work the prior President on sensible legislation.

The FTC recently lost their ability to regulate ISPs. That's why it was done this way. If the FTC had not been stripped of it's powers, then there would have been no need.

> These regulations were only voted on late in 2016 and never went into effect.

False. Parts of the regulation went into effect 30 days after publication. Parts went into effect 90 days after publication. Part would have gone into effect 6 months after publication. Part would have gone into effect 12 months after publication.

See pg. 202 of the Report and Order.

So then, surely, the current Republican leadership in government will pass these rules the "right way"?

I thought not.

"The lesson here really is that if the issue is really important, then get an actual law passed instead of trying to contort regulatory authority based on laws from the 1930s."

That's silly. That's like saying phone doesn't deserve protection from wiretapping because there never was a law specifically against it.

<edited> So as it's going to be a flame war apparently I've deleted the comment.

I'd just like to register my opinion that I don't see Washington Post is an objective, nor even a trustworthy source at this point. When they print something it's often worth looking deeper into I believe.

That's entirely incorrect. The Republicans own actions, and absolutely nothing else, portrays them in a bad light.

>Although Washington Post isn't quite Brietbart yet they appear to be headed rapidly in that direction from my perspective

So you've never actually been to Breitbart then? I checked it regularly before the 2016 elections and, in those days, it certainly earned its nickname "stormfront lite." They've toned it down since the additional scrutiny and subsequent mainstreaming of the Trump era, but WaPo has never been and will never even come close to Breitbart. Also Breitbart is an overt propaganda outlet. WaPo may seem biased, but it certainly does not engage propaganda on the same level as Breitbart.

  WaPo has never been and will never even come close to Breitbart.

Well, they certainly weren't close to the Obama administration or Clinton campaign like WaPo was, as clearly revealed in numerous WikiLeaks-exposed email exchanges.

Meanwhile, if you see any factual errors on Breitbart, by all means post them.

You don;'t need facts when your product is bigotry rather than information.

> Meanwhile, if you see any factual errors on Breitbart, by all means post them.

I liked this one:

http://talkingpointsmemo.com/edblog/breitbart-issues-best-co...

> I'd just like to register my opinion that I don't see Washington Post is an objective, nor even a trustworthy source at this point.

That's because you probably believe that the Illuminati or clockwork elves are real.

Or maybe its because operation mockingbird never went away and wapo is quantifiably part of that core narrative group.

Yours is the kind of negative, noncontributory comment I would'nt be surprised to see dang flag.

Yours is the kind of negative, noncontributory comment I wouldn't be surprised to see dang flag.

Your comment consists entirely of conspiracy theories and personal attacks.