Telecoms companies are having their cake and eating it. / Mike Mozart
Kade Crockford,  March 30

The Great Data Sale

Privacy under the spotlight

Telecoms companies are having their cake and eating it. / Mike Mozart
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“Don’t it always seem to go / That you don’t know what you’ve got / ‘Til it’s gone.”—Joni Mitchell.

You can tell Representative Mike Capuano represents Boston, my hometown, because he talks like someone who carries around with him a deep and abiding hatred of Comcast. “I have a simple question,” my congressman began, in Wednesday’s floor debate in the House over digital privacy. “What the heck are you thinking? What is in your mind?” At this point he was shouting and wildly gesticulating. “Why would you wanna give out any of your personal information to a faceless corporation for the sole purpose of them selling it?”

The occasion for the good representative’s airing of outrages innumerable was a vote on a GOP measure to kill Obama-era FCC rules, established in October 2016 and intended to go into effect in December 2017, which would have prevented internet service providers from monetizing their customers’ data without their permission. The FCC promulgated these rules because it knew that “privacy rights are fundamental because they protect important personal interests—freedom from identity theft, financial loss, or other economic harms, as well as concerns that intimate, personal details could become the grist for the mills of public embarrassment or harassment or the basis for opaque, but harmful judgments, including discrimination.”

The House debate drove home that, two months into the Trump experiment, Democrats feel comfortable in their role as the angry opposition, as member after outraged member rose to speak in defense of the people, and against the insatiable greed of the major ISPs. Republicans, for their part, largely sat out the debate. What was there to say besides, “Well, the rich guys asked for this, so we’re giving it to them”?

Communications law in the United States prevents telecommunications companies from listening in on your phone calls. It requires that providers secure that information, and bans companies from selling it or giving it away—except, for example, if the government presents them with a valid wiretap order. In the Obama-era FCC-verse, it made perfect sense to extend similar privacy rules to the companies that provide hundreds of millions of Americans with access to the internet. To the vast majority of Americans, this also makes sense. It even makes sense to Breitbart commenters.

Protecting Americans’ basic privacy interests doesn’t sit right with the Paul D. Ryan Republican Party.

But protecting Americans’ basic privacy interests apparently doesn’t sit right with the Paul D. Ryan Republican Party. So in a near-party-line vote, the GOP Senate and GOP House rejected the Obama privacy rules, ensuring that—for the time being at least—Comcast, Time Warner, Charter, and the other major internet providers will be able to continue charging you outrageous sums of money for oftentimes mediocre service, while at the same time harvesting and selling your secrets to the highest bidder. To better defend your privacy in the short term, you’ll have to pay more money, this time to a VPN service, which may or may not provide you with substantial privacy protection, but will definitely bill your credit card monthly. You can use the free Tor browser, but that won’t safeguard your mobile internet use, or data produced and communicated by apps.

It may not surprise you to learn that Newt Gingrich is partially responsible for this clusterfuck of a situation. Indeed, it’s Newt’s Congressional Review Act that gives Congress, with the expected cooperation of its current Child President, the authority to reverse recently established regulations. Worse still, under the CRA, if Congress and the president dismantle existing regulations, the regulatory agency that initially issued them is forever banned from issuing “substantially similar” regulations. As they say, forever is a mighty long time.

For nearly a decade, I’ve dedicated a significant portion of essays about privacy to persuasion: “You should care about the latest privacy assault for all of these reasons,” I’ve written. “The government will be able to do x, y, z if we don’t stop this,” I’ve explained. “Corporations shouldn’t be able to do a, b, c without your permission,” I’ve insisted. Sometimes it’s felt like I’m begging people to give a shit. That’s in part because the unfortunate reality is that negative rights like the right to privacy are difficult to sell in the loud, busy, and reactive marketplace of political ideas. The dangers inherent to privacy loss often seem remote to people, especially when those people are wondering where their next rent check or meal will come from. Others aren’t all that concerned because, since they’ve always been on the monitored side of the fake mirror, they simply cannot comprehend the ways in which a loss of privacy directly translates into a loss of personal control, dignity, economic advantage, and power.

There’s a reason government surveillance is kept secret; it’s the same reason data brokers don’t want you to know they exist, and why companies that use algorithms to manipulate you tend to keep their code and business practices secret. The people looking in from the other side of the fake mirror—people who truly understand what information can do, insofar as it helps them control other people—don’t need to be told why privacy matters; it matters for the very reasons they are trying to obliterate it.

But privacy advocates like me don’t need to convince anyone that allowing ISPs to sell our information is dead wrong. People simply get it.

As with health care, people now feel entitled to privacy rights

And, in the wake of the GOP-implosion on health care and the votes to kill internet privacy, I think I know why everyone’s suddenly so upset about the very thing I and some others have been harping about all these years. President Obama left us gifts we didn’t realize were so precious, and which I confess to having not sufficiently appreciated—primary among them greater expectations. The GOP health-killing bill failed because, years after the ACA became law, even Obamacare-hating GOP voters had begun to feel entitled to its benefits the way they’ve long felt entitled to Medicare. We’re seeing bipartisan voter outrage at the overturning of these FCC privacy rules because people think they deserve the protections Obama left behind—as with their health care, they now feel entitled to these rights. Most people probably didn’t even know the rules existed in the first place, but when they found out the GOP was gunning to eradicate them, all political hell broke loose.

In his epic rant on the floor the other day, my congressman, Mike Capuano, conceded that the Republicans had one good argument on the FCC regulations issue: It’s not fair, they say, to subject ISPs to rules that companies like Google and Facebook don’t have to follow. There are some problems with this argument. For one thing, Google and Facebook aren’t monopolies (I can use DuckDuckGo instead of Google, and I don’t have to use Facebook). But in many parts of the Boston area, where Rep. Capuano and I live, if you want high speed internet, you pay Comcast. There is simply no competition. Second, Google and Facebook provide digital services in exchange for user data—they don’t additionally send you a bill. Comcast and its buddies are trying to have it both ways. They want us to pay them for a service, and then use that service to monetize our private information, threatening not only our personal dignity but also our credit scores, job prospects, personal security, and political power.

But leaving all that aside, it’s true that Google, Facebook, and like companies are allowed to sell our personal records, and that under the canned FCC rules, Comcast and Time Warner would have been barred from doing so without our consent. The answer to this imbalance, as Rep. Capuano said, should not be to cater to the lowest common denominator by blowing up the regulatory scheme and giving the green light to medieval levels of exploitation, as the Republicans did this week. Instead, we should pass laws to subject even the data-hungry Silicon Valley technology gods to stricter rules governing how they can monetize and manipulate our sensitive information.

This week has been a bruiser for digital privacy, but I know what I’m holding onto with white-knuckled fists: videos of Democrats standing up and speechifying in defense of strong digital privacy rights and against raw corporate greed. The next time they are the ones making decisions and setting the agenda, I plan to remind them.

Kade Crockford is director of the Technology for Liberty project at the ACLU of Massachusetts, where she edits and writes the Privacy Matters blog.

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