On Tuesday, November 16 at 2:00 PM, the FCBA Privacy and Data Security Committee and the American Bar Association’s Forum on Communications Law will hold the 16th Annual Privacy & Data Security Symposium: “The Evolving Privacy Landscape in the Absence of Federal Legislation”. This event will take a deep dive into the evolving privacy
Join Kelley Drye and Telecom Council at TC3 Carrier Connections
On November 16th, Partner Steve Augustino will host the “Private 5G Networks” roundtable during Telecom Council’s virtual TC3 conference. This discussion will delve into this latest trend in 5G innovation, including the choices of unlicensed or licensed spectrum, MVNOs, privacy, control, and federal concerns about security. In addition to this and other Executive Roundtables,…
FTC Staff Report Puts Spotlight Back on ISP Data Collection and Use Practices; FCC Re-Regulation Suggested
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. 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. 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.
What the FTC will do with the staff report is less clear. The Commission voted unanimously to release the report, which does not make any specific policy recommendations. Members of the Commission, however, drew their own conclusions and articulated starkly different outlooks on the report’s implications. 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. 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.…
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Join Kelley Drye at the 15th Annual Privacy & Data Security Symposium
Many stewards of the Internet’s most popular websites, online services, and platforms have historically funded their products and services by harnessing the value of consumer data, with varying degrees of transparency about what data they collect, how they use it, and what third parties do with it. Consumers, public interest groups, some tech companies, regulators,…
Podcast: Rethinking TCPA Enforcement
The latest episode of Full Spectrum’s Inside the TCPA series takes a closer look at shifting strategies to provide effective enforcement of TCPA violations. Unlike TCPA actions of the past, which focused primarily on the entity that is placing the call, these new TCPA actions rely upon new approaches to enforcement, involving both new targets…
Podcast: IoT Security
From smart homes and self-driving vehicles to drones and healthcare monitoring, Internet of Things (IoT) capabilities are a hot topic for both manufacturers and consumers. The most recent episode of Kelley Drye’s Full Spectrum podcast spotlights one of the key areas for everyone involved – maintaining security of IoT devices. The episode features cybersecurity developments,…
Securing IoT Devices (Part 2): Inside the NIST Guidance Document for IoT Device Manufacturers
At the end of July, the National Institute for Standards and Technology (“NIST”) released draft cybersecurity guidance for IoT device manufacturers. The document, titled Core Cybersecurity Feature Baseline for Securable IoT Devices: A Starting Point for IoT Device Manufacturers, is intended, according to NIST, identify the cybersecurity features that IoT devices should have “to make them at least minimally securable by the individuals and organizations who acquire and use them.” The NIST document is not a rule or requirement for IoT devices, but rather is a continuation of NIST’s effort to foster the development and application of voluntary standards, guidelines, and related tools to improve the cybersecurity of connected devices.
NIST is seeking comment on the document through September 30 of this year and it held a workshop in August for interested parties to discuss the document. In a prior post, I blogged on takeaways from that workshop. Now, it’s time to take a closer look at the NIST document itself.…
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Support for FTC Jurisdiction Over Broadband: Ninth Circuit En Banc Rules Common Carrier Exemption is “Activity,” and not “Status-based,” Reversing Earlier AT&T Victory
The Republican-led FCC’s effort to get out of the business of regulating broadband providers’ consumer practices took a step forward on Monday. In an appeal that has been proceeding in parallel with the FCC’s “Restoring Internet Freedom” reclassification proceeding, the U.S. Court of Appeals for the Ninth Circuit issued an opinion giving the Federal Trade Commission (FTC) broad authority over practices not classified by the FCC as telecommunications services. Specifically, the Ninth Circuit, sitting en banc, issued its long-awaited opinion in Federal Trade Commission v. AT&T Mobility, holding that the “common carrier exemption” in Section 5 of the FTC Act is “activity based,” exempting only common carrier activities of common carriers (i.e., the offering of telecommunications services), and not all activities of companies that provide common carrier services (i.e., rejecting a “status-based” exemption). The case will now be remanded to the district court that originally heard the case. Coupled with the FCC’s reclassification of Broadband Internet Access Services (BIAS) in the net neutrality/restoring internet freedom proceeding, the opinion repositions the FTC as top cop on the Open Internet and broadband privacy beats.
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Will Your TV Watch You? FCC Green Lights Targeted Advertising in Next Gen TV Broadcasting Standard
Last week, the Federal Communications Commission (FCC), in a 3-2 vote, approved an order allowing “television broadcasters to use the ‘Next Generation’ broadcast television (Next Gen TV) transmission standard, also called ‘ATSC 3.0.’” Described in the Order “as the world’s first Internet Protocol (IP)-based broadcast transmission platform,” the Next Gen TV standard is expected to allow broadcasters to provide more targeted advertisements to individual viewers. Some had expressed concerns over the collection of the demographic and consumer data necessary for Next Gen TV targeted advertising, and applicable privacy safeguards for the new standard. At this stage though, the FCC majority took a wait and see approach to privacy concerns.
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House Antitrust Subcommittee Explores the Role of Antitrust Law in Net Neutrality
On November 1, 2017 the House Antitrust Law Subcommittee held a hearing to discuss the role of federal agencies in preserving an open Internet.
The core question discussed at the hearing was whether current antitrust law is sufficient to ensure net neutrality absent FCC rules. The panelists—including FTC Acting Chairman Maureen Ohlhausen and Commissioner Terrell McSweeney; former FCC Commissioner Robert McDowell; and Michael Romano, NTCA Senior Vice President of Industry Affairs and Business Development—and committee members were generally divided down party lines, with Republicans arguing that FCC rules were both unnecessary and counterproductive and Democrats arguing that rules were necessary to ensure an open Internet, free expression, and innovation. …
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