By Michael LaBossiere
Showing the extent of their concern for the privacy of Americans, congress has overturned rules aimed at giving consumers more control over how ISPs use their data. Most importantly, these rules would have required consent from customers before the ISPs could sell sensitive data (such as financial information, health information and browsing history). Assuming the sworn defender of the forgotten, President Donald Trump, signs the bill into law, ISPs will be able to monetize the private data of their customers.
While the ISPs obviously want to make more money, giving that as the justification for stripping away the privacy of customers would not make for effective rhetoric. Instead, proponents make the usual vague and meaningless references to free markets. Since there is no actual substance to these noises, they do not merit a response.
They also advance more substantial reasons, such as the claim that companies such as Facebook monetize private data, the assertion that customers will benefit and the claim that this will fuel innovation. I will consider each in turn.
On the one hand, the claim that other companies already monetize private data could be dismissed as a mere fallacy of appeal to common practice. After all, the fact that others are doing something does not entail that it is a good thing. On the other hand, this line of reasoning can be seen as a legitimate appeal to fairness: it would be unfair that companies like Google and Facebook get to monetize private data while ISPs do not get to do so. The easy and obvious counter to this is that consumers can easily opt out of Google and Facebook by not using their services. While this means forgoing some useful services, it is a viable option. In contrast, going without internet access is extremely problematic and customers have very few (if any alternatives). Even if a customer can choose between two or more ISPs, it is likely that they will all want to monetize the customers’ private data—it is simply too valuable a commodity to leave on the table. While it is not impossible for an ISP to try to win customers by choosing to forgo selling their data, this seems unlikely—thus customers will generally be stuck with the choice of giving up the internet or giving up their privacy. Given the coercive advantage of the ISPs, it is up to the state to protect the interests of the citizens (just as the state protects ISPs).
The claim that the customers will benefit is hard to evaluate in the abstract. After all, it is not yet known what, if anything, the ISPs will provide in return for the data. Facebook and Google offer valuable services in return for handing over data; but customers already pay ISPs for their services. It might turn out that the ISPs will offer customers deals that make giving up privacy appealing—such as lowered costs. However, anyone familiar with companies such as Comcast will have no faith in this. As such, the overturning of the privacy rules will benefit ISPs but will most likely not benefit consumers.
While the innovation argument is deployed in almost any discussion of technology, allowing ISPs to sell private data does not seem to be an innovation, unless one just means “change” by “innovation.” It also seems unlikely to lead to any innovations for the customers; although the ISPs will presumably work hard to innovate in ways to process and sell data. This innovation would be good for the ISPs, but would not seem to offer anything to the customers—anymore than innovations in processing and selling chickens benefits the chickens.
Defenders of the ISPs could make the case that the data belongs to the ISP rather than the customer, so they have the right to sell it. Laying aside the usual arguments about privacy rights and sticking to ownership rights, this claim is easily defeated by the following analogy.
Suppose that I rent an office and use it to conduct my business, such as writing my books. The owner has every right to expect me to pay my rent. However, they have no right to set up cameras to observe my work and interactions with people and then sell the information they gather as their own. That would be theft. In the case of the ISP, I am leasing access to the internet, but what I do in this virtual property belongs to me—they have no right of ownership to what I do. After all, I am doing all the labor. Naturally, I can agree to sell my labor; but this needs to be my choice. As such, when ISPs insist they have the right to sell customers private data, they are like landlords claiming they have a right to sell anything valuable they can learn by spying on their tenants. This is clearly wrong. Unfortunately, congress belongs to the ISPs and not to the people.