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Tuesday, August 30, 2016


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Chansond de Roland

As the U.S. Supreme Court noted in another context, the power to tax is the power to destroy. The broadband ISPs’ (ISPs’) proposed premium pricing is simply a tax, a private party’s tariff, on privacy, which ISPs will use to make privacy so expensive that few will be able to afford it, so all but a few will have to submit to the complete loss of privacy in order to have broadband services, which the FCC, President Obama, and every reasonable and unbiased observer recognizes is a necessary utility in the modern age in modern industrial society. Therefore, the ISPs’ premium pricing would simply be coercion that would force nearly all accede to the complete loss of their privacy on the Internet.

But what makes the ISPs’ proposal for premium pricing for privacy such an outrage and which they don’t mention, when talking of tradition of discount pricing is only appropriate, where the property being priced belongs to the vendor, yet here privacy of our personal information belongs to each customer and not any ISP. The FCC’s privacy proposal is simply the common sense and traditional acknowledgement of the right, which exists in most other legal context and circumstances, that our personal information as to where we go and what we do is private as to strangers and as to third parties, even where and when we have a relationship with those third parties to provide some other service or good. With ISPs, we have only a limited commercial relationship to provide broadband services, which are in fact and now deemed to be a utility. We already pay a subscription, which, as reported in this blog, is extremely high for extremely slow service. Now, the ISPs wish to be granted permission to take even more value from consumers for the same poor to mediocre service by taking their extremely valuable right of privacy in their personal information from them. And thanks to AT&T et al., from it pricing reported on, supra, we have some idea of just how valuable our personal information is, being worth a premium of approximately $500 to $700 per year.

Granting the ISPs authority to use the cudgel of premium pricing for privacy expropriates from us our privacy, when for broadband service we grant only a limited license to ISPs to know, use, and dispose of our personal information but only to the extent necessary to provide us with broadband services, and that license is based on a subscription price for the service offered. However, if the FCC were to grant differential discounting based on privacy, then our privacy will become a matter of an ISP’s discretions, which it will exercise based on what most profitable, without regard to any person’s right in his privacy on the Internet.

What will they charge us for next? Differential pricing for the right to use our names on the Internet? Or perhaps the right to go to certain website? But, oh, that’s right, the net neutrality rules prohibit that. But isn’t this a way, through the backdoor, to charge us for where we go and what we do on the Internet, but this time by charging us for our privacy, as if our privacy were theirs and not ours?

But why stop at privacy? Why not offer differential pricing for whether one is willing to drive a self driving car offered by your ISP? Or differential pricing for those who promise not to ever complain about their broadband services? And so on. The reason that the answer to all of that is no arises from the two principles, one of which we’ve discussed, supra: First, the right of privacy in our personal information of what we do and where we go on the Internet is ours, not the ISP’s; and second, it is text book antitrust law that one may not tie the desired good, which here is broadband service, to an another unwanted good or service, here the sacrifice of privacy. That is tying, which a violation of U.S. antitrust law. So the FCC must say not to this premium pricing on two grounds: First, it effectively deprives the consumer of his right to privacy in his personal information about his doings on the Internet, and Second, it would violate the antitrust principle of tying by requiring that consumers sacrifice their privacy in order to get essential broadband services.

But even more than antitrust law, the right of privacy in one’s personal information that one authors with one’s acts on the Internet is a precious thing not merely in terms of money or property, though the property right is ours, but also in terms of the loss of human dignity. In the instant context, broadband ISPs have only a limited license, as set forth in the FCC's proposed privacy rule, referenced supra, to know, use, and dispose of our personal information as is necessary to provide broadband services. Beyond that, with respect to any broadband ISP, we have a right to absolute and utter privacy regarding our personal information, as if the ISP were an utter stranger, because, beyond the limited license to use our personal information to provide its broadband services, our ISP is an utter stranger. Who has any dignity, when an utter stranger can know everything they do, as if that stranger had a right to know what we do, as if we were children of slaves? It should not and must not be that we must sacrifice our privacy to an ISP, an utter stranger, simply to have affordable broadband.

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