Then they could be retroactively hit with some kind of a fine or Something Like that. That happened to google, 22. 5 million. They said they were not they were honoring blocking Third Party Cookies but were, in fact, hacking around them. It was retroactive. The fcc affirmatively now, under the fact that the Communications Law will cover them as communications as common carriers, they have to make rules. I mean, the ftc never had rules. They didnt have any rulemaking authority. Its all been about host well, before we go any further here, gentlemen, lets bring Howard Buskirk into the conversation, executive Senior Editor of communications daily. What are the concerns of the ispns, what would be your biggest concern . Guest well, and im not here representing any particular isp. I have done a lot of work counseling clients in many different areas, including some isp clients. But i think the concern is if one were to apply the current telecommunication cans privacy rules Telecommunications Privacy rules which were developed in the context of the Telecom Reform act of 1996 which was a world of telephony, the rules do not work very well in the world of the internet where you have apps and you have internet advertising companies, operating systems. All these different players are involved in collecting a certain amount of information and also involved in delivering services. So the broad concern would from the isps would be that they would be discriminated against. On the one hand, theyre required you should the Net Neutrality order under the Net Neutrality order to carry all traffic that goes across their systems. Theyre regulated as a sort of common carrier and required to support all these different entities. And then they uniquely would be prohibited from participating in the internet Advertising Marketplace which they currently are very, very small players in. So the idea that they would have to carry the traffic but unable themselves to obtain any sort of advertising revenue by virtue of information that theying obtain by vir view of providing Internet AccessService Strikes many of the isps as really unfair and also dealing with a tiny part of the ecosystem that is not currently a major player in the world of advertising. So its really that this would be irrational and and arent there some questions about how much data the isps would have to protect and how much data in the changing ecosystem, how much theyre actually, how much data that theyre responsible for . Guest well, theres a study that just came out by the former privacy czar in the Clinton White house, peter swiefer swire, with some other colleagues of his at georgia tech which showed that the majority of internet traffic by the end of this year is going to be encrypted. So that all the content of that, of those communications will not be visible to the isp. On the other hand, an operating system provider would see that traffic unencrypted and so, actually, would have more information than the usp would. Further isp would. Furthermore, were no longer in a world where people access the internet i via only their home isp. The average consumer uses 6. 1 devices to connect to the internet, bizarrely, and most consumers are using 35 different Internet Access providers to connect to the internet every day. The single home isp, for example, does not have a unique view of a huge amount of user activity. And if you consider, and think about it, if you take your smartphone and you connect to wifi which 46 of mobile users are doing for their internet traffic, that informations going through a wifi provider. If you access the internet from home, you will typically have a Home Internet provider. If you access information on your mobile device when youre not connected to wifi, your wireless provider will be collecting information, and then your work isp provider, whoevers providing Broadband Service at the office, will also potentially collect some information. But this is a much more fragmented universe with much of the data encrypted so the isp cant see it anyway. Guest that particular study has been disputed by a number of people recently. I think about 65 president 65 of the data right now is unencrypted, and thats talking about the content thats going on every over. But whats just as significant and just as revealing is the information of what site you went to and how long you were there and sort of tracking, you know, types of sites that you visit and then having ads targeted on the basis of that sort of information. It is correct that the current rules that apply to common carriers were from the world of telephones, and they arent adequate and really dont correctly categorize the kinds of information that should come under the fc privacy rules with Broadband Access providers. And thats what this rulemaking is all about. Its trying to figure out, you know, which things are, in fact, whats known as cp and i which is Customer Proprietary Network information, the data that you gather simply by virtue of someone plugging into your network. And the idea is you ought not to be able to use that day for purposes other than completing the Network Transaction unless the person gives permission for that to happen. Thats the way it works in the telephone world, and it should work the same way in the broadband Internet Accessproviding world. For the average subscriber, why should he care about his that information . Are there ways in which the carriers, the isps are monetizing guest sure. Raising concerns [inaudible] guest yeah. I mean, now you get that data, a profile can be put together about you, and you can then be sort of targeted for kinds of advertising that can end up being discriminatory and taking advantage of you in ways that probably arent entirely fair. And while it is true that, you know, the internet is more than just the Internet Access providers, they are in a unique position in terms of you pretty much have to go through one, and its appropriate because they are unique to recognize that and deal with the data that they gather. And we can talk about other questions around socalled edge providers, the googles, the facebooks and all that. I believe there should be some rules put in place this. But thats not the subject of this particular fcc provision at this point. Host jim halperin. Guest i think you do need to look at the ecosystem for a whole. Its not true that isps have a uniquely broad view of user behavior. Theres also no indication that ive read of that isps are analyzing all the unencrypted traffic that goes through their network in all the places where users are going. But even if that were the case, that is exactly what internet advertising Business Models do today. And its not particularly harmful. Its, essentially, presenting ads that you may be interested in based on where youre going on the internet. And this is how the adsupported, Free Internet works today. The isps are tiny players in the world of internet advertising. There are strong selfregulatory requirements that isps and others in this ecosystem have all made to follow privacy optout rules in a variety of ways that give consumers notice and control. Those are absolutely enforceable today. Theres nothing that would change that. Theyre binding commitments. And to break off this whats today tiny piece of the internet advertising system ecosystem and subjecting it to rigorous rules that consumers wont understand and ignore the whole rest of the internet ecosystem is not really a rational approach to privacy on the internet. The fact is that given the way that congress is configured right now and the house of representatives is likely to the remain under pretty libertarian republican control for at least six years and probably another ten after that, its virtually certain that there will be no general privacy legislation that applies to the internet. There would just be this odd, tiny be little piece of the internet ecosystem that would be subject to potentially very confusing rules. What consumers want, i think, and expect is to have choices about how their information is used to have clear, transparent notice about information practices and to have an easy way to opt out of practices that they dont want to see being done with their data. But moving to an optin privacy rule which is effectively what johns add sew candidating advocating for is really quite different. If you think about what happens with your health information, for example. When you go to a doctor, you have to sign a form, a privacy form, every single time you to a different doctor. And effect live i, that effectively, thats what would be happening with Internet Access service for information to be used for any purpose under any delivery service. Guest i think thats what were essentially suggesting. E we think with the isps that, indeed, before they can use the information for purposes other than providing the the service, that it should be an optin sort of situation. And, you know, thats part of the problem right now with the internet. You talk about all these selfregulatory regimes and so on, and theyre based on socalled notice and choice model where, you know, they explain it in a Privacy Policy, and people say, oh, okay, thats fine. That doesnt work because the fact who returned around this table, when was the last time anyone read a Privacy Policy except maybe you because youre ca lawyer who writes them, and you get paid by the word guest no, i dont get paid by the word. I also read them as a consumer. Guest my standard line is they realize like theyre written read like theyre written by lawyers who get paid by the word. Guest we worked together on this guest yes, we did. I agree. And it was fun. Right now were in the last year of an administration, and right now the fcc is looking at just a proposal, right . So whats the likelihood theyre going to be able to put out the nprm, notice of proposed rulemaking, get the comments they need back and still get a final rule and get this in place by the end of the administration . Guest i think it will be very interesting to see if they can get that done. I think its important that they do the notice of public rulemaking as soon as they possibly can, and thats i would expect quite soon. And that, the if nothing else, raises all the questions and gets a record going where people can put in their various views and their various concerns. And, you know, if they can come back fast enough with a new rule, thatd be great. But it can also serve as a foundation for what goes on with the next commission and the next administration. Guest theres also a con tin con tin general is city here contingency here that created this regulatory gap. It may not be upheld in its entirety. So theres a decent chance that wireless providers will be, in the end, the d. C. Circuit court of appeals is reviewing a challenge to that order, and there is a pretty good chance that wireless providers may be ruled to be outside of the Net Neutrality order. And if thats the case, then we would see an even more fragmented potential rule and probably a fair amount of confusion that might slow down this rulemaking. Is so because were on somewhat uncertain legal ground with the Net Neutrality order itself, we cant exclude a surprise coming from the d. C. Circuit court of appeals and further narrowing the scope of this. All of a sudden you would see the, for wireless providers you would see the ftc get jurisdiction again in midstream, and its possible that there will be litigation on this underlying regulatory fact thats triggered this rulemaking guest well, the whole thing could be thrown out. Guest right. Guest it is being challenged. Guest so that could interrupt this as well. Host john simpson, for folks watching this at home, what does this conversation mean to them . Why is it important or . Guest i think its important because it does, if it goes through the way many of us in the privacy community would hope that it goes through, i think it will mean consumers will have more choice and control over the data that is gathered about them. And i think thats an important thing in this world. And i think most people want that. If you look at the various polls that have been taken, theres great concern in the United States by the average person about their privacy on the internet. Guest and i think what this means really is whether consumers are going to be asked to opt in when they sign up for Internet Service or in the middle of a Service Contract which is something that is like the Health Care Privacy release you sign. I think consumers are going to be readier to sign on to that. I think its better to have very clear notices to consumers and then ready control where consumers can go and choose to opt out, consciously opt out of different types of services. What johns advocating or use of their data. What johns advocating is a default rule where a Consumer Needs to, first of all, will be asked and needs to check the release so that their information can be used. I dont think that actually brings the same degree of thought as very clear short notes and ready consumer controls. Youve seen google, comcast, a number of Companies Move to providing this so sort of consur control over uses of consumer data, and i think it gets you to much the same place and in some ways to a better place. Guest i mean, i would want to have clear explanations of what it is they want to do with your data before you opt in to give permission. I think it ought to be an optin, you think it ought to be an optout. I guess. Guest i thats probably where we are. You both talks about a process before of privacy. Would it make sense just to get nerve the room, the consumer advocates and the Public Interest groups and the isps and have a big discussion about this and maybe there could be an agreement on rules and that would obviate the need for the fcc to impose regulations . Guest i think, actually, that that probably would not work, but ill guest i would agree with you, it would not work. We proved that. Guest well, but ill give you an example. John and i tried to work, and i devoted a lot of time and effort to a process where a set of short form notice guidelines should be developed so that consumers could make choices about whether to use a mobile app before downloading it. And what i found in the process was that a number of the privacy advocates, and we were working with them, really didnt want to tackle just that problem. And didnt want, i dont think were interested in this effort being sortover a broad sort of a broad consensus agreement, because they had other things they wanted. On the other side, i found that the Business Community was concerned about being very prescriptive. In the end, a code was put forward, and apple, blackberry, google have all moved to do slightly difference types of short form notice. In the end, i think that that gets consumers to require that before apps can be downloaded that gets amazons done the same thing. That gets consumers to a place of receiving short form notice but maybe not in the exact way that was agreed to in the, was on the face of the cold. But it got to the same place. On the other hand, i found that the consumer advocates didnt really want to have a compromise because they want optin privacy rules in different places. And so they wanted to push for broader, broadly addressing that. It was much harder to come up with deals on very broad questions. Its easier on narrower questions. This took about a year. But i think that the process that that would take to yield an agreement on the whole universe would be feasible, but it would take several years x. I dont think that regulators are going to wait for that, honestly. Guest no, i think that the multistakeholder process, as they call it, may sound good, but i think that in order to really get something done, i think you need to have a formal rulemaking. And thats what this particular thing thats coming up will be presumably. And theres a big tifns between a bunch difference between a bunch of people sitting around a room, all the vested and competing interests trying to come up with something and sort of agreeing. I think a formal rulemaking is a much better way to go. And i think our experience showed that. Guest well, i dont think thats always true, but i think in this situation its whats going to happen, and given the limited amount of time left in this administration, i dont see a sort of mediated everett to come up with effort to come up with this in a short period of time. We going to see a big fight at the fcc on this . It looks like things are breaking down politically sort of like they did over Net Neutrality with the republicans on the commission very opposed to some of these rules, and the Commission Majority really wanting to move forward. So do you think do you see this sort of mirroring the Net Neutrality battle once it gets before the commission . Guest i think this is a little bit more complicated an issue from a Public Policy perspective. Theres a very strong argument that for the ftc fcc to move forward doing Something Different than the ftc has done would be arbitrary. Theres a very strong argument also that Internet Access providers who now are absolutely required to carry all traffic should not be able to do things that thousands of other players in the internet ecosystem are doing with regard to advertising for their Broadband Services, over their Broadband Services. I think there also are legal questions here that are pretty complicated if, indeed, the Net Neutrality rule is struck down as to wireless providers. And all those things may create a more, i think a more supple political alignment at the fcc, and im hopeful well work toward finding solutions that really are practical, consistent and clear to consumers and based largely on the ftc framework. Im not sure that thats what will happen, but that was the framework that applied previously. The fcc could then enforce it with much stronger penalties. The fccs to been very aggressive at enforcing lately, and i think jim likes that. One again can question whether thats arbitrary because ore entities are not subject to that, but whatever final set of rules would result would be enforced, i think, vigorously x. Theres no question about that in light of the recent enforcement record at the fcc. So there is, i think, a middle way here x im hopeful that the commissioners when they really think about this and look broadly at the internet Advertising Market which, again, isps are tiny players in, theyll decide that doing manager thats closer to the ftc something thats closer to the ftc framework makes more sense. Host john simpson, you get the final word today. Guest i agree its a complex issue. Im not sure it would play out exactly the same way. Well get a better sense of that in a few weeks, i think, when the rulemaking is open and we tart to see the comments come in we start to see the comments come in. Host john simpson is with consumer watchdog where he is the privacy project director. Jim halpert is a lawyer with dla piper, covers cybersecurity matters, and Howard Buskirk is executive Senior Editor of communications daily. Cspan, created by americas Cable Companies 35 years ago and brought to you as a mix service by your local as a Public Service by your local cable or satellite provider. Today the Israeli Defense minister speaks at the Wilson Center on palestine, the situation in syria and can the rise of isis. Our live coverage begins at 9 a. M. Eastern here on cspan2. Campaign 2016 continues on tuesday with primaries taking place in missouri, illinois and swing states ohio, North Carolina and florida. Live coverage of the election results, candidate speeches and viewer reaction guns at 7 p. M begins at 7 p. M. Eastern. Taking you on the road to the white house on cspan, cspan radio and cspan. Org. Education week hosted a discussion friday with acting u. S. Education secretary john king. Mr. King talked about the administrations k12 education priorities. The full senate is scheduled to vote on mr. Kings nomination this afternoon beginning at 4 p. M. Eastern with a vote scheduled for 5 30 p. M. This is about 30 minutes. [inaudible conversations] all right, everybody. Moving on to our final part today, also going to be an amazing half hour where youre going to get a chance to hear from a very important player in k12, acting u. S. Secretary of education john b. King jr. Who is on his way to being confirmed as u. S. Secretary of education. [applause] secretary king is a career ecker who taught educator who taught, served as a principal, operated a Charter School and was new york States Education commissioner before joining the u. S. The president of education last year. Now, with less than a year to go in the obama administration, secretary king is charged with implementing the nations reauthorized k12 law, the every Student Succeeds act. So please join me in welcoming secretary king to the stage. Thank you. [applause] good afternoon. Good afternoon. Wow, that was low energy. [laughter] good afternoon. Good afternoon. Thats better. Its a privilege to be here with all of you, grateful to leslie for the introduction can, grateful to Education Week for being a voice for students and educators and also for being a place for constructive, thoughtful dialogue. Were not always going to agree on every policy issue on education in the United States, for sure, but its important that we have places for thoughtful,