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Date: October 11, 2016

The FCC has revised its broadband privacy proposal to focus on the sensitivity of consumer data rather than how it is used; however, several concerns have arisen about internet service providers (ISPs) being subject to harsher regulations as a result.  The latest proposal would require that ISPs obtain "opt-in" consent from consumers before they can use and share information deemed "sensitive" by the FCC (e.g., app usage and web-browsing history).  ISPs would be allowed to use all other "nonsensitive" individually identifiable information, unless the consumer opts out.   Art Harding of the firm’s Communications, Media and Information Technology Group commented that the key will likely be what the FCC defines as "sensitive," and he noted that consumers could be confused by the way their data may be used by players in the online ecosystem. “I think informed consent by the customer and consumer choice is really a very worthy goal, but the devil’s going to be in the details when we see the final order," Art said. "Trying to maintain some consistency with the FTC and trying to avoid the issue of confusion are going to be tricky.” Art also discussed children’s information as one of the items on the “sensitive” list, noting its potential complications.  “There’s a lot of details that have to be looked at carefully when the final ruling comes out,” he said. Read the full article. Subscription to Law360 is required.   

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