• by Wendy Davis , Staff Writer @wendyndavis, October 4, 2016

Google is weighing in against the Federal Communications Commission's proposal that broadband providers obtain consumers' opt-in consent before using data about their Web activity for ad-targeting.

The company argues in a letter to the FCC that its rules for broadband providers should follow the Federal Trade Commission's model. The FTC only calls for companies to obtain people's explicit consent before sharing "sensitive" data -- like health information, precise location data and the "content" of their communications, including social media posts and search queries -- with outside companies. Companies are free to share non-sensitive data with ad networks on an opt-out basis, under the FTC's approach.

"This model is familiar to consumers, has worked well for them for many years, and contributed to today’s thriving, innovative, and free Internet," Austin Schlick, Google's director for communications law, says in a letter sent to the FCC on Monday.

"The FTC’s framework recognizes that while U.S. consumers consider healthcare or financial transactions, for example, to be sensitive information that should receive special protection, they do not have the same expectations when they shop or get a weather forecast online," Schlick adds.

He goes on to say that the FCC "should allow such differentiation based on the nature of web browsing information, regardless of the company collecting the data."

This letter marks the first time that Google itself has publicly commented on the FCC's proposal, although the company belongs to industry associations that have argued against the FCC's proposed privacy regulations for broadband.

Google's involvement is notable for several reasons, including that the FCC appears to lack the authority to regulate Google's search or ad business. (The FCC's rules, however, would apply to Google Fiber.)

What's especially striking is that broadband providers have argued that the proposed regulations would disadvantage them against Google and other so-called "edge" providers -- meaning the Web companies that offer content or services.

In fact, AT&T specifically said that the potential regulations would benefit Google and Facebook at the expense of broadband providers. "The proposed marketing restrictions would irrationally protect market incumbents (e.g., Google and Facebook) against competition from new entrants (ISPs) in the digital advertising market," AT&T said in a 15-page presentation submitted to the FCC in June.

FCC Chairman Tom Wheeler recently hinted to a Senate panel that the agency may revise its proposal. He didn't elaborate on how the rules may evolve, but told lawmakers that the FTC's input into the potential rules was "particularly helpful." Staff at the FTC recomme nded earlier this year that Internet service providers should obtain opt-in consent before using "sensitive" data for ad targeting, and allow consumers to opt out of the use of "non-sensitive" information.

But consumer advocates say the FCC should reject calls to craft different rules for different types of data.

"The sensitivity of information is highly subjective and context-dependent," Chris Calabrese, vide president of policy at the Center for Democracy & Technology, writes in an FCC filing submitted last week.

"A single piece of data may seem non-sensitive on its own but reveal sensitive information when combined with other data points," he writes, adding that IP addresses (often considered non-sensitive) can reveal information about where people live, which can lead to inferences about their race and income.

"'Non-sensitive' information can be a lynchpin in a broader system of profiling," he writes. "Offering one level of protection (in this case, opt-in) for 'sensitive' information and another level of protection (opt-out) for other information would be impractical and would negate consumer choice."