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Privacy Bar Section | At State of the Net, questions linger over FTC, FCC's regulatory abilities Related reading: FTC leaders participating in tech, consumer protection workshop

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At the 2017 State of the Net Conference last week in Washington, D.C., analysts gathered to peer into the future — as best they could, of course — to discuss what the recent change of political power bodes for privacy and some of the key agencies that regulate it,  such as the Federal Trade Commission and the Federal Communications Commission.

"Rethinking The Future of Communications Policy" saw discussion on the planned restructuring of the FCC under new Chairman Ajit Pai. Panelists agreed there are plenty of uncertainties ahead, and they also agreed there's a lack of varied perspectives within the FCC itself. 

Gigi Sohn is a fellow at the Open Society Foundations, but she used to be a counselor to Former FCC Chairman Tom Wheeler. She said one of the problems plaguing the FCC is the makeup for the agency itself.

“It’s extremely frustrating to try and bring engineers, to try and bring economists into the building," she said. "And as a result, we end up relying on industry-supported, industry-founded technological reports, and industry-funded economic reports. That's not what you want."  

Employee perspective aside, the FCC's future role in privacy regulation is something stakeholders are watching closely, especially now, with Pai at the helm. Particularly, panelists noted, its yet unknown what will happen to the agency's broadband privacy rules. 

"I think that when the FCC adopted its broadband privacy rules, it gave a really nice template for what privacy could look, like not only for networks but also for the edge [providers], which is one of the reasons that edge providers weren't so thrilled with our privacy rules," Sohn said.

She pointed to the controversy surrounding web browsing data's status as either sensitive or non-sensitive information as a potential area of future revision. "I would expect that at a bare minimum, the new majority would roll back the web-hosting and make them nonsensitive as opposed to sensitive," Sohn said, calling it an imperfect but better-than-everything move. 

Then there's that whole thing about the FTC v. the FCC as privacy regulators. What's to happen there? 

"There's obviously the problem of having two agencies with very different approaches, one a regulatory approach, wether a case-by-case approach, and the FTC regulating different parts of the ecosystem," said Larry Downes, director of the Georgetown University Center for Business and Public Policy. He said even if the two agencies' rules were harmonized, its actual synchronism would be limited.

"I'd like it to be two sets of rules enforced by the FTC," he said, while acknowledging that the 9th circuit decision restricting the FTC's regulatory jurisdiction made moving in that direction a bit more difficult than it used to be. Steptoe & Johnson’s Markham Ericsson agreed, calling the agencies' differing rules a source of "regulatory arbitrage" resulting in consumer confusion.

Sohn disagreed. "I don't think consumers are confused," she said. "Again, I think what would have been nice was to raise the bar as opposed to lower the bar, and that's something Congress could still do if they wanted to do."

Jamison said ultimately coherence is what's missing in the regulatory framework.

"It would be really good to have uniformity ... in how this is done," he said. "Whether it should be up or down is then the debate to have, but it should be coherent." 

Sohn countered that it's not strange for industries to have more than one regulatory body, pointing to banking and aviation industries as examples.

"The FCC and the FTC work really well together, and there's no reason why that can't continue in the future," she said. Yet, "when a portion of the economy is so critically important to people, as this one is, it's not an odd notion, and in fact I think its prudent and necessary, to have more than one regulator." 

Downes countered, "But it's not one industry, multiple regulators. It's different parts of the same industry, different regulators for the same topic."

As for how those two regulators will work together now, it's anyone's guess. 

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