• by Wendy Davis , Staff Writer @wendyndavis, September 7, 2016

The Federal Communications Commission should forge ahead with privacy rules that would restrict broadband carriers from engaging in online behavioral advertising, dozens of public interest groups argue in a new filing with the agency.

The ACLU, Public Knowledge, Center for Digital Democracy, Electronic Frontier Foundation and 33 other advocacy groups are urging the FCC to reject attempts by Internet service providers to weaken the original proposal, unveiled earlier this year by Chairman Tom Wheeler. He called for carriers to obtain broadband customers' opt-in consent before using information about their Web-surfing history for ad targeting purposes.

Broadband providers wasted no time formulating objections to the potential regulations. Among other arguments, carriers say they shouldn't be required to get opt-in consent before drawing on supposedly "non-sensitive" information.

But the ACLU and other groups point out that different rules for sensitive data may not when it comes to broadband providers.

"It is difficult, maybe impossible, for carriers to distinguish between sensitive and non-sensitive without actually looking at and assessing a customer’s information to make that distinction -- and it would be administratively difficult for the FCC to oversee any such distinction," the groups write. "The difficulty in distinguishing between sensitive and non-sensitive information is exacerbated by the fact that the sensitivity of information depends on context."

Even the ad industry can't agree on the definition of "sensitive" -- a significant problem with the broadband providers' argument. Privacy expert Paul Ohm, a former policy adviser to the FTC, flagged this issue earlier this year in an FCC filing.

He pointed out that the self-regulatory groups Network Advertising Initiative and Digital Advertising Alliance define "sensitive" health information differently. The DAA considers "pharmaceutical prescriptions or medical records related to a specific individual" sensitive health data. But the NAI takes a more expansive view; that group defines sensitive health information as “precise information about past, present, or potential future health or medical conditions or treatments, including genetic, genomic, and family medical history."

Ohm added in FCC comments that Facebook and Google also have their own definitions of sensitive information for online ad purposes.

"Advertisers can definitely target ads to people suffering from a particular disability on DAA platforms, definitely not on Facebook, and probably not on Google or NAI," Ohm wrote. "Genomic information is only expressly prohibited within the NAI definition, arguably within Google’s, and likely not Facebook’s or DAA’s."

The ACLU and other watchdogs also point out that the FCC isn't proposing a ban on ad targeting. Instead, the proposed rules would only require carriers to get consumers' permission.

"There is no demonstrated need for the FCC to water down privacy protections afforded to information some parties consider to be less sensitive," the groups write. "If the benefits to consumers are as good as ISPs have claimed, consumers will consent to allowing their ISPs access even to sensitive information."