The FCC and the privacy crucible

[Commentary] In this new Age of Enlightenment, we abide by a simple social contract: Companies give us their goods and we give them our data. Nobody knows the true cost of the information we relinquish in this exchange, but that seems to be no deterrent. While the equity of the exchange is debatable, the loss of privacy is not. When it comes to the internet, our barter becomes more complex. Scores of invisible intermediaries in the online ecosystem have the ability to access and collate high volumes of data through tools and techniques unseen and unknown to most of us. But this cozy compact is beginning to fray. Today's digitally conscious consumers expect and demand more control over their own data. They want to determine when, where and how they interact electronically with banks, stores and advertisers. Even though collected data can inform innovation and improve services, transparency, choice and consent are the consumer mandates of the day. The Federal Communications Commission began its recent quest for enhanced privacy authority under the leadership of Chairman Tom Wheeler. Reaching for the barest statutory thread, the agency has sought to weave a case for a role in privacy enforcement, rivaling the FTC.

Its recent actions have prompted many in Congress and industry to ask: why this, and why now? What happens to FCC privacy enforcement when Wheeler and Enforcement Bureau Chief Travis LeBlanc move on to greener pastures? What happens when the new FCC chairman (and there will be a new chairman in 2017) questions the FCC's claim to privacy jurisdiction or even Title II? Will the current engagement with privacy end with a tryst with Travis? These are among the questions being whispered in the legal and policy galleries as the FCC reaches for power patently beyond its grasp.

[Hoffman is chairman of Business in the Public Interest and an adjunct professor of Communication, Culture and Technology at Georgetown University]