• by Wendy Davis , Staff Writer @wendyndavis, May 26, 2016

The U.S. Chamber of Commerce weighed in today against the Federal Communications Commission's proposal that broadband providers obtain consumers' opt-in consent before using data about their Web surfing activity for ad purposes.

The Chamber argues that Congress, not the FCC, should decide broad questions about broadband privacy. "The proposed rule seeks to make policy decisions with respect to requiring prior permission for data usage and disclosure, the expansion of covered personal data, cybersecurity, and data breach that are best left to Congress," the business organization says in a letter sent to the FCC today.

The business group adds that the proposal threatens innovation "by stifling the already thriving Internet ecosystem."

Like other critics of the proposal, the Chamber contends that the rules unfairly impose tougher standards on broadband providers than so-called "edge providers" like Google, Facebook and ad networks. Those companies typically follow a self-regulatory code that requires them to allow consumers to opt out of receiving targeted ads.

"The Commission has ... failed to offer any evidence that edge and content providers are respecting consumers’ privacy more than broadband providers or that Internet service providers have any meaningful advantage over content and edge providers with respect to personal data," the Chamber argues.

Consumer advocacy groups disagree, pointing out that ISPs have access to all unencrypted traffic in their networks. While more sites now encrypt data than in the past, much remains unencrypted. Consider, a recent study by Upturn found that more than 85% of the top 50 sites in health, news and shopping don't fully support encryption.

Upturn also noted in its report that ISPs can glean information about consumers even when they visit encrypted sites. "By examining the features of the traffic -- like the size, timing and destination of the encrypted packets -- it is possible to uniquely identify certain web page visits or otherwise reveal information about what those packets likely contain," Upturn wrote.

Consumer advocacy groups also argue that broadband providers should be subject to tougher privacy rules because consumers have only limited options about which ISP to use, but many choices about which Web sites to visit.

FCC Chairman Tom Wheeler has made clear that he agrees with the advocates on those points. "We can choose not to visit a Web site or not to sign up for a social network, or we can choose to drop one and switch to another in milliseconds. But broadband service is different," he recently stated. "Once we subscribe to an ISP -- for our home or for our smartphone -- most of us have little flexibility to change our mind or avoid that network rapidly."