Did Congress just accidentally help keep your browsing history more private?

By eliminating restrictions of ISPs selling their customers browsing history, Congress may have inadvertently helped push us towards a more secure future.

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Credit: FCC

Congress’s recent decision to roll back privacy protections that were put in place by former FCC Chairman Tom Wheeler has caused many privacy advocates a great deal of concern.

Many observers are not convinced that the free market approach that leaves decisions about customer privacy in the hands of internet service providers, or ISPs, will result in choices that benefit the consumer. On the other hand, there is a chance that this Congressional action may have the unintended consequence of increasing your online privacy and security by pushing websites to take matters into their own hands. 

There are a number of common misconceptions about how the loosening of restrictions will impact the public. For starters, it's difficult to say with certainty how this will change the FCCs approach to consumer privacy. The now-repealed rule sent a clear message to ISPs that the FCC would take a fairly aggressive stance towards the use of customer information and protection of privacy, which was an incentive for ISPs to be cautious in how much they pushed the issue lest the face sizable FCC penalties. When he was an FCC Commissioner, Ajit Pai, the current head of the FCC, was opposed to former Chairman Wheeler's approach and has consistently stated his view that businesses will make the best decisions for their customers based on market pressure.

This sends a clear signal that he will not push for strict enforcement of the rules, so ISPs will have greater latitude in how they interpret and implement consumer privacy protections.  

It is important to note that despite the repeal of the prior FCC rule, there are other restrictions that restrict ISPs from selling your individually identifiable data to advertisers or marketers. These rules will continue to prevent ISPs from selling information that is specifically linked to you and identifies you by name. It does not, however, prevent that same private information from being aggregated and sold to marketers so it can then be used in targeted advertising campaigns. There are also Federal restrictions in place that restrict the collection of certain types of data, such as personal medical records.  

Pai's approach of depending on the good will of ISPs to respect their customers' privacy is still problematic. With many Americans having only one or two ISP choices, Pai's views have a touch of wishful thinking about them, but he may have inadvertently come close to the truth. It's just that the businesses making the pro-consumer decisions are more likely to be website operators than ISPs. 

As with many online advances in the past, adult websites may be leading the way in the fight to protect online privacy, A number of these sites have announced that they will implement the use of HTTPS by default to encrypt and hide the activities of visitors to their sites. This is a welcome trend and an example that I hope most other websites will follow. In fact, I expect this to be the case, since this issue has attracted a significant amount of attention from tech sites as well as more general news outlets since Congress repealed the FCC's former rule.   

Because this rollback of consumer privacy protection has become something of a hot-button issue, privacy advocates are unlikely to let this story fade away anytime soon. If there is sufficient sustained concerned by enough people, more websites will feel pressured to implement encryption and use HTTPS by default. Ironically, the relaxation of restrictions on collection and use of consumer data may encourage the implementation of HTTPS by websites that otherwise would not have taken that step.

It should be noted that even with HTTPS, your ISP will still be able to see which websites you visit, they just won't be able to see what you do once you are there. If you want to completely hide your activity from your ISP, you will need to take more drastic measures on your own, such as the use of a VPN or the Tor browser. Even without taking those individual steps, if a sufficiently high percentage of websites do embrace HTTPS, it moves the needle on how much information you are forced to share with your ISP during normal use towards a more reasonable level. 

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