The FCC has released a Fact Sheet outlining a Noticed of Proposed Rulemaking (“NPRM”) proposal from Chairman Wheeler to apply the privacy requirements of the Communications Act to broadband Internet access service. The proposal has three ultimate goals: increased choice for consumers, more transparency, and more security.

With the exception of (1) customer data necessary to provide broadband services and for marketing the type of broadband service purchased by a customer and (2) customer data obtained for the purposes of marketing other communications-related services or the sharing of that data with their affiliates that provide communications-related services for the purposes of marketing such services, all other uses and sharing of consumer data by ISPs would require express, affirmative “opt-in” consent from the customer under the proposal.

In addition to the general framework described above, Chairman Wheeler proposes that:

  • consumers be given the decision either to opt out or to require that the ISP first obtain customers’ permission before using and sharing the customer’s data;
  • in the event of a breach, providers be required to notify affected customers of breaches of their data no later than 10 days after discovery, the Commission of any breach of customer data no later than 7 days after discovery, the Federal Bureau of Investigation and the U.S. Secret Service of breaches affecting more than 5,000 customers no later than 7 days after discovery of the breach;
  • broadband providers be required to take reasonable steps to safeguard customer information from unauthorized use or disclosure and to adopt risk management practices, institute personnel training practices, adopt strong customer authentication requirements, identify a senior manager responsible for data security, and take responsibility for use and protection of customer information when shared with third parties.

The proposed NPRM is expected to be voted on by the full Commission at the March 31 Open Meeting.

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