Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

Safeguarding and Securing the Open WC Docket No. 23-320

Internet
December 14, 2023

Lawyers’ Committee for Civil Rights Under Law

Comments in Response to the Notice of Proposed Rulemaking

David Brody
LAWYERS’ COMMITTEE FOR
CIVIL RIGHTS UNDER LAW
1500 K Street, NW
Suite 900
Washington, DC 20005

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 TABLE OF CONTENTS
I. Summary .................................................................................................................. 2
II. Broadband internet access service should be classified as a Title II service. ........... 4
III. Title II reclassification is necessary to protect civil rights, combat digital redlining,
and promote equal opportunity online. ............................................................................ 5
IV. Section 202 prohibits discrimination on the basis of race and other traits. ............. 11
V. The Commission must protect consumer privacy by not forbearing from applying
Section 222 to broadband and should propose data minimization and other privacy
rules. ............................................................................................................................. 14
a) Broadband internet access service providers pose a unique threat to privacy
based on their network position and, for mobile broadband, access to cell-site location
information. ................................................................................................................ 15
b) The Commission should propose data minimization regulations in a further notice
of proposed rulemaking. ............................................................................................ 18
1) Data minimization............................................................................................. 18
2) Transparency ................................................................................................... 21
3) Consumer rights and the limited role of consent .............................................. 23
4) Data security .................................................................................................... 24
VI. Conclusion .............................................................................................................. 25

I. Summary
The Lawyers’ Committee for Civil Rights Under Law submits these comments in
response to the Federal Communications Commission’s (“Commission”) Notice of
Proposed Rulemaking, Safeguarding and Securing the Open Internet, WC Docket No.
23-320 (Oct. 19, 2023) (“NPRM”).1 The Lawyers’ Committee supports the
reclassification of broadband internet access service as a Title II telecommunications
service because Title II authorities are necessary for the Commission to fulfill its mission
“to make available, so far as possible, to all the people of the United States, without
discrimination on the basis of race, color, religion, national origin, or sex, . . . rapid,
efficient, Nation-wide, and world-wide” access to the Internet.2 We agree with the
Commission that “full participation in our society and economy” requires broadband

1 Safeguarding and Securing the Open Internet, WC Docket No. 23-320, Notice of Proposed Rulemaking,
88 Fed. Reg. 76048 (proposed Oct. 19, 2023) (to be codified at 47 C.F.R. pts. 8, 20) [hereinafter NPRM].
2 47 U.S.C. § 151.

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internet access service and that it is “essential to every aspect of our daily lives.”3
Everyone is entitled to the equal enjoyment of the internet’s goods and services without
discrimination. Reclassification is a necessary step toward creating a truly equitable
national communications system.
The Lawyers’ Committee uses legal advocacy to achieve racial justice, fighting
inside and outside the courts to ensure that Black people and other people of color have
the voice, opportunity, and power to make the promises of our democracy real. The
organization’s Digital Justice Initiative works at the intersection of racial justice,
technology, and privacy to address predatory commercial data practices, discriminatory
algorithms, invasions of privacy, disinformation, and other online harms that
disproportionately affect Black people and other people of color.
Broadband internet access service is a necessity to be a fully engaged member
of society. Today, high-speed internet is a basic and essential utility just as much as
electricity, water, and telephone service. Access to it is, in the words of the late Rep.
John Lewis, “the civil rights issue of the 21st century.”4 Those who do not have reliable
and affordable broadband are almost like second-class citizens—unable to do
homework, unable to search for a job or a house, unable to compare options for loans
or insurance, unable to work remotely, unable to seek medical care remotely, unable
even to engage politically, civically, and expressively with the same media that are a
part of daily life. This is an issue of profound importance for the equal opportunity and
economic advancement of Black people and other people of color. Across the rural
South, for example, 38% of Black households do not have home internet.5 The
difference between classifying broadband as a Title I information service or a Title II
telecommunications service is the difference between treating internet access as a
utility service or not, a common carrier service or not, a necessity or not. Reclassifying
broadband internet access service is about unlocking the powers of the
Communications Act to protect and promote equal access to broadband. But it is also
more than that: it is a statement that no one should be left behind.
While much of the present rulemaking focuses on advancing important net
neutrality principles, the Lawyers’ Committee files this comment specifically to highlight
other key issues related to the Commission’s primary mission of ensuring universal
service by eliminating discrimination in telecommunications. Reclassification unlocks

3 NPRM ¶ 2.
4 Comcast, Rep. John Lewis (D-GA) and Comcast Exec. VP David Cohen with Tim Farley, SoundCloud
(Aug. 24, 2012), on The Morning Briefing, SiriusXM, https://corporate.comcast.com/comcast-voices/rep-
john-lewis-d-ga_and_comcast_exec_vp_david_cohen_discuss_internet_essentials_with_tim_farley
(follow first hyperlink to SoundCloud clip).
5 Aaliyah Wright, What It’s Like Living With Limited Access to Internet in the Black Rural South, The

Markup & Capital B (Dec. 6, 2023), https://themarkup.org/still-loading/2023/12/06/digital-redlining-and-

the-black-rural-south.

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anti-discrimination requirements, data privacy protections, and other key authorities for
protecting communities of color.
The Lawyers’ Committee’s comments address three key issues:
1) Title II reclassification is necessary to protect Black people and other people of color
and ensure equal opportunity to enjoy the benefits of the Internet.
2) The Commission should recognize that Section 202 prohibits discrimination on the
basis of race and other traits.
3) The Commission should not forbear from applying Section 222 to broadband and
should issue a further notice to propose data minimization and other privacy rules.

II. Broadband internet access service should be classified as

a Title II service.
Under the plain meaning of the Communications Act, broadband internet access
service is—and should be classified as—a telecommunications service, and providers
of it are—and should be classified as—common carriers subject to Title II obligations.
Under the Act, “‘telecommunications service’ means the offering of telecommunications
for a fee directly to the public . . . regardless of the facilities used.”6
“Telecommunications” means “the transmission, between or among points specified by
the user, of information of the user’s choosing, without change in the form or content of
the information as sent and received.”7 A “telecommunications carrier” is, in general, a
“provider of telecommunications services” and “shall be treated as a common carrier[.]”8
When someone uses the internet, they are instructing the company providing
them with access to the internet to transmit on their behalf information of their choosing
without change in the form or content—that action is telecommunications. There is no
fundamental difference between transmitting data packets for internet access and
transmitting sound recordings for telephony. These are just two different technical
methods of transmitting electronic communications over a wire or radio using a service
provided by a third party. When the user pays a company to provide this service to
them—that is a telecommunications service. That company is therefore a
telecommunications carrier and “shall be treated as a common carrier” when providing
that service.9
As a result, broadband internet access service and the providers who offer it are
subject to Title II of the Communications Act and can be subjected to the requirements

6 47 U.S.C. § 153(53).
7 Id. § 153(50).
8 Id. § 153(51).
9 Id.

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that accompany it.10 These include not engaging in unjust or unreasonable practices or
discrimination,11 responding to formal complaints by consumers,12 and protecting
customer privacy.13 Title II can also authorize the net neutrality rules proposed by the
Commission: no blocking, throttling, or paid prioritization of content, and a requirement
to abide by the proposed general conduct rule.14
In contrast, the definition of an “information service”—which would convey Title I
treatment instead of Title II treatment—is not a good fit for broadband internet access
service. “The term ‘information service’ means the offering of a capability for generating,
acquiring, storing, transforming, processing, retrieving, utilizing, or making available
information via telecommunications[.]”15 Broadband internet access service is access
and communication to the internet itself. That service unlocks the ability to do all of the
things contained in the definition of information service, but it is not the provision of such
services themselves. A broadband internet access service provider can of course offer
the capability to do these other actions, but that is a distinct offering from offering
access to transmit information over the internet. Internet service providers primarily
market themselves based on their transmission ability, not on the additional services
they may offer on top of it.
Finally, even if the plain meaning of the statute was ambiguous, the Supreme
Court has recognized that the Commission has discretion to classify broadband internet
access as a Title II service.16 The Commission should do so to unlock tools to better
protect civil rights, as discussed below.

III. Title II reclassification is necessary to protect civil rights,

combat digital redlining, and promote equal opportunity
online.
In this section, we respond to the Commission’s requests for comment on the
importance of broadband internet access service for everyday life and for advancing
digital equity, including in paragraphs 1, 2, 3, 7, and 39.17
Equal access to the internet is necessary to advance equity and equal
opportunity in the modern online and data-driven world. There is a direct connection
between historical redlining and digital redlining in broadband internet access service.
The Commission should reclassify broadband internet access service as a Title II
telecommunications service so that it can unlock the full suite of legal authorities and

10 47 U.S.C. § 201 et seq.

11 Id. § 202.
12 Id. § 208.
13 Id. § 222.
14 See NPRM ¶¶ 137, 140, 144, 150.
15 47 U.S.C. § 153(24).
16 See Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005).
17 See NPRM ¶¶ 1-3, 7, 39.

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tools necessary to remediate discrimination and ensure that all Americans have equal
opportunity.
As an example of the need for reclassification and greater Commission action on
broadband access, the day before the Commission voted to adopt new rules to combat
digital discrimination in November 2023, a new report using FCC data showed stark
inequality in broadband internet access service availability around Cleveland. The
Commission’s “Broadband Map shows that Cuyahoga County’s lowest-income
neighborhoods are still far more likely than others to be stuck with old, slow home
‘broadband’ service from AT&T.”18 The report found that “for nearly half (48%) of all its
serviceable locations in Cuyahoga County tracts with median annual household
incomes below $35,000, AT&T reported maximum speeds below 25 Mbps down and 3
Mbps up. . . . [M]ost, but not all, [of these locations] are on the East Side of the city of
Cleveland.”19 This correlates with racial segregation—these areas are predominantly
Black, with many of the underserved neighborhoods being over 70% Black and less
than 20% white.20 The report notes that “[a]ll the ‘broadband serviceable locations’ in
these statistics are able to receive AT&T wireline service. . . . If a location is still limited
to 2005-vintage technology, it means AT&T has chosen not to upgrade its nearby
facilities over the course of fifteen years and two ‘system-wide’ upgrades.”21 And AT&T
charges all customers in this area the same price, regardless of whether they have fiber
or DSL speeds.22
Digital redlining, as the new frontier of discrimination, is “the creation and
maintenance of technology practices that further entrench discriminatory practices
against already marginalized groups.”23 Digital redlining has deep roots in American
history that begin with segregation and actual redlining in the housing market. In 1934,
the newly-established Federal Housing Administration furthered already prevalent
segregation efforts by refusing to insure mortgages in and near Black neighborhoods
while also subsidizing builders who were mass-producing entire subdivisions for white
people.24 Before World War II and continuing thereafter, government agencies and
government-sponsored corporations, including the Home Owners Loan Corporation,
Fannie Mae, and the Federal Housing Administration continued to fuel the creation of

18 Connect Your Cmty., FCC Broadband Data: Poorer Cuyahoga Neighborhoods Are Still Likeliest to Get
Old, Slow AT&T Service (Nov. 14, 2023), https://connectyourcommunity.org/fcc-broadband-data-poorer-
cuyahoga-neighborhoods-are-still-likeliest-to-get-old-slow-att-service/.
19 Id.
20 See U.S. Census Bureau, 2020 Census Demographic Data Map Viewer,

https://maps.geo.census.gov/ddmv/map.html (last visited Dec. 11, 2023).

21 Connect Your Cmty., supra note 18 (emphasis in original).
22 Id.
23 Banking on Your Data: The Role of Big Data in Financial Services: Hearing Before the Task Force on

Fin. Tech. of the H. Comm. on Fin. Serv., 116th Cong. 9 (Nov. 21, 2019) (statement of Dr. Christopher
Gilliard), https://democrats-financialservices.house.gov/uploadedfiles/chrg-116hhrg42477.pdf.
24 Terry Gross, A ‘Forgotten History’ of How the U.S. Government Segregated America, NPR (May 3,

2017), https://www.npr.org/2017/05/03/526655831/a-forgotten-history-of-how-the-u-sgovernment-
segregated-america.

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suburban America through low-cost mortgage loans to developers and homebuyers in a
manner that excluded people of color.25 The segregation tactics and policies
implemented by these agencies pushed many Black people to urban communities that
were isolated and did not have the same access to resources.26
Prior to the passage of the Civil Rights Act of 1964, the Housing Act of 1954
“empowered local authorities to adopt [urban] renewal plans that guaranteed continued
separate and unequal development.”27 The Home Owners’ Loan Corporation
specifically mapped out America’s racial geography, drawing red lines around Black
neighborhoods marking them as off limits for the government-insured mortgages.28 Both
the Federal Housing Administration and Fannie Mae refused to support the origination
of mortgages to Black people or insure any project where developers had not taken
adequate steps to ensure that no homes would be sold to Black buyers.29 The current
60% income ratio between Black and white Americans’ incomes and 5% wealth ratio
can be attributed in part to discriminatory federal housing policies implemented in the
20th century.30 Redlining isolated Black people in areas that would suffer lower levels of
investment than their white counterparts—including investment in infrastructure.31
Today, the impacts of redlining persist and lead to many disparities. “Many
measures of resource distribution and public well-being now track the same geographic
pattern: investment in construction; urban blight; real estate sales; household loans;
small business lending; public school quality; access to transportation; access to
banking; access to fresh food; life expectancy; asthma rates; lead paint exposure rates;
diabetes rates; heart disease rates; and the list goes on.”32 The digital divide defines the
gap between those Americans who have access to telecommunications and information
technologies and those who do not.33 Rural communities do not have the same access

25 See id.
26 Id.
27 Arnold R. Hirsch, “The Last and Most Difficult Barrier”: Segregation and Federal Housing Policy in The

Eisenhower Administration, 1953-1960, Poverty & Race Rsch. Action Council 2 (Mar. 2005),
https://www.prrac.org/pdf/hirsch.pdf.
28 Nat’l Fair Hous. All., National Fair Housing Alliance Redlining Toolkit §1 (History and Legal Framework)

(Apr. 2022), https://nationalfairhousing.org/wp-

content/uploads/2022/03/Section1_Topic1_History_RedliningToolkit.pdf.
29 Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America

18-24 (2017).
30 Angela Hanks et al., Systemic Inequality: How America’s Structural Racism Helped Create the Black-

White Wealth Gap, Ctr. for Am. Progress (Feb. 21, 2018),
https://www.americanprogress.org/article/systematic-inequality/.
31 See Andre M. Perry & David Harshbarger, America’s Formerly Redlined Neighborhoods Have

Changed, And So Must Solutions to Rectify Them, Brookings (Oct. 14, 2019),
https://www.brookings.edu/research/americas-formerly-redlines-areas-changed-so-must-solutions/.
32 Leaders of a Beautiful Struggle v. Balt. Police Dep’t, 2 F.4th 330, 349 (4th Cir. 2021) (en banc)

(Gregory, C.J., concurring) (collecting sources).

33 Colby Leigh Rachfal, Cong. Rsch. Serv., R46613, The Digital Divide: What Is It, Where Is It, and

Federal Assistance Programs, (Mar. 9, 2021), https://crsreports.congress.gov/product/pdf/R/R46613.

7
to broadband services and are underserved in comparison to urban communities.34
Lower income families are less likely to have access than higher income groups.35 And
people of color are less likely to have access than their white counterparts.36 Racially
restrictive covenants and redlining “form part of a long history of discrimination, which
has contributed to the disparities in homeownership and wealth still observed between
the Black and white populations of the country today.”37
Underinvestment in infrastructure in Black communities during the Jim Crow era
also included underinvestment in telecommunications infrastructure.38 As a result, Black
communities have always had less access, and less equal access, to
telecommunications services, which includes access to the internet today. Lower
income communities today and communities that were historically redlined based on
race overwhelmingly overlap.39 The results of redlining directly relate to the digital
divide, creating circumstances “where wealthy broadband users are getting the benefits
of cheaper and faster Internet access through fiber, and low-income broadband users
are being left behind with more expensive slow access by that same carrier.”40 Having
internet access that is expensive and also slower than the average broadband minimum
speeds set by the Commission in 2015 is a recipe for unequal access.41
These inequities persist today; broadband internet access service is not
universally accessible. According to the Commission’s 2019 Broadband Deployment
Report, 21.3 million Americans did not have access to broadband service as of 2018.42
However, an independent 2021 study suggested that the actual number could be

34 CBS Mornings, The Digital Divide Between Rural and Urban America’s Access to Internet, CBS News
(Aug. 4, 2017), https://www.cbsnews.com/news/rural-areas-internet-access-dawsonville-
georgia/?linkId=40576782.
35 Allan Holmes et al., Rich People Have Access to High-Speed Internet; Many Poor People Still Don’t,

Ctr. for Pub. Integrity (May 12, 2016), https://publicintegrity.org/inequality-poverty-opportunity/rich-people-

have-access-to-high-speed-internet-many-poor-people-still-dont/.
36 Kaleigh Rogers, Internet Service Providers Systemically Favor White Communities Over Communities

of Color, Vice: Motherboard (Feb. 23, 2018), https://www.vice.com/en/article/8xdd7b/internetservice-

providers-systematically-favor-white-communities-over-communities-of-color.
37 Perry & Harshbarger, supra note 31.
38 Shelley Stewart III et al., McKinsey Inst. for Black Econ. Mobility, & McKinsey Glob. Inst., The

Economic State of Black America: What is and What Could Be, McKinsey & Co. 1, 13 (June 2021),
https://www.mckinsey.com/~/media/mckinsey/featured%20insights/diversity%20and%20inclusion/the%20
economic%20state%20of%20black%20america%20what%20is%20and%20what%20could%20be/the-
economic-state-of-black-america-what-is-and-what-could-be-f.pdf.
39 Tracy Jan, Redlining Was Banned 50 Years Ago. It’s Still Hurting Minorities Today., Wash. Post (Mar.

28, 2018), https://www.washingtonpost.com/news/wonk/wp/2018/03/28/redlining-was-banned-50-years-

ago-its-still-hurting-minorities-today/.
40 Ernesto Falcon, The FCC and States Must Ban Digital Redlining, Elec. Frontier Found. (Jan. 11, 2021)

https://www.eff.org/deeplinks/2021/01/fcc-and-states-must-ban-digital-redlining.
41 See Karissa Bell, Senators Ask the FCC to Change the Definition of High-Speed Broadband, Engadget

(Mar. 4, 2021), https://www.engadget.com/senators-fcc-change-definition-high-speed-broadband-

222150947.html.
42 Inquiry Concerning Deployment of Advanced Telecommunications Capability to All Americans in a

Reasonable and Timely Fashion, GN Docket No. 18-238, 2019 Broadband Deployment Report, 34 F.C.C.
Rcd. 3857, 3858 ¶ 2 (May 29, 2019).

8
double that estimate.43 That number increases to 157.3 million when including people
who have theoretical access to broadband but are unable to utilize the internet at
broadband speeds.44
These data show disparities along racial and socio-economic lines. According to
a 2021 study, 71% of Black Americans and 65% of Hispanics have high-speed internet
at home, compared to 80% of whites.45 The same study showed that only 57% of
households making less than $30,000 had home broadband, compared to 93% of
households making $100,000 or more.46 Among households that do have internet
access, those in poorer areas have lower effective access speeds,47 in part because
lower income households are more likely to be limited to outdated technologies like DSL
that overstate connection speeds.48 Taken together, these figures suggest that the
theoretical availability of broadband plans does not result in actual equity of broadband
access. The data show that while broadband access is increasing over time, the digital
divide persists.49 A 2022 report from The Markup showed that lower income
neighborhoods were being offered substantially lower quality internet service than other
people living in the same city, for the same price.50
The digital divide affects students from kindergarten to college and beyond.51
With greater reliance on internet access, racial and socio-economic gaps become even
more stark. In a 2018 survey, 24% of teens whose annual family income was less than
$30,000 said the lack of a dependable computer or internet access prohibited them from

43 John Busby et al., BroadbandNow Estimates Availability for All 50 States; Confirms that More than 42
Million Americans Do Not Have Access to Broadband, BroadbandNow (Oct. 21, 2021),
https://broadbandnow.com/research/fcc-broadband-overreporting-by-state.
44 Shelley McKinley, Microsoft Airband: An Annual Update on Connecting Rural America, Microsoft (Mar.

5, 2020), https://blogs.microsoft.com/on-the-issues/2020/03/05/update-connecting-rural-america/.
45 Sara Atske & Andrew Perrin, Home Broadband Adoption, Computer Ownership Vary by Race, Ethnicity

in the U.S., Pew Rsch. Ctr. (July 16, 2021), https://www.pewresearch.org/fact-tank/2021/07/16/home-

broadband-adoption-computer-ownership-vary-by-race-ethnicity-in-the-u-s/.
46 Emily A. Vogels, Digital Divide Persists Even as Americans with Lower Incomes Make Gains in Tech

Adoption, Pew Rsch. Ctr. (June 22, 2021), https://www.pewresearch.org/fact-tank/2021/06/22/digital-

divide-persists-even-as-americans-with-lower-incomes-make-gains-in-tech-adoption/.
47 Roberto Gallardo & Brian Whitacre, The Real Digital Divide? Advertised vs. Actual Internet Speeds,

Purdue Ctr. for Reg’l Dev. (Oct. 7, 2020), https://pcrd.purdue.edu/the-real-digital-divide-advertised-vs-

actual-internet-speeds/.
48 See Shara Tibken, The Broadband Gap’s Dirty Secret: Redlining Still Exists in Digital Form, CNET

(June 28, 2021), https://www.cnet.com/home/internet/features/the-broadband-gaps-dirty-secret-redlining-

still-exists-in-digital-form/; Commc’ns Workers of Am. & Nat’l Digit. Inclusion All., AT&T’s Digital Redlining
Leaving Communities Behind for Profit (Oct. 2020), https://www.digitalinclusion.org/wp-
content/uploads/dlm_uploads/2020/10/ATTs-Digital-Redlining-Leaving-Communities-Behind-for-Profit.pdf.
49 See Internet/Broadband Fact Sheet, Pew Rsch. Ctr. (Apr. 7, 2021),

https://www.pewresearch.org/internet/fact-sheet/internet-broadband/.
50 See Leon Yin & Aaron Sankin, How We Uncovered Disparities in Internet Deals, The Markup (Oct. 19,

2022), https://themarkup.org/show-your-work/2022/10/19/how-we-uncovered-disparities-in-internet-deals.
51 Erin Richards et al., A Year into The Pandemic, Thousands of Students Still Can’t Get Reliable WiFi for

School. The Digital Divide Remains Worse Than Ever., USA Today (Feb. 4, 2021),
https://www.usatoday.com/story/news/education/2021/02/04/covid-online-school-broadband-internet-
laptops/3930744001/.

9
finishing their homework, compared to 9% of teens from households earning $75,000 or
more.52 Among the respondents, 13% of Black teens said they often could not finish
homework due to lack of a computer or internet connection, compared to just 4% of
white teens.53 During the COVID pandemic, the vast majority of K-12 students received
some degree of online instruction.54 Among the parents of these children, 14% said their
child had to resort to public Wi-Fi because there was no reliable connection at home—
while this figure was 4% in high income households, it was 23% in lower income
households.55
Adults need equitable internet access as well, for all kinds of daily necessities.
Individuals who are seeking housing go online to find listings and apply for loans.56
When looking for employment, a majority of Americans look for and apply to jobs
online.57 Lack of access to reliable telecommunication services can impede the ability
for individuals in rural communities, especially rural Black households,58 to get online
and access telehealth resources, another necessity during the COVID-19 pandemic.59
As technology rapidly intertwines all aspects of our daily lives, being able to
access and have reliable internet is a basic necessity and not a privilege. Based on the
historical impacts of redlining, Black and Brown communities are impacted
disproportionately by poor Internet connectivity, no Internet connectivity, and barriers to
accessing fairly priced telecommunications.60 Everyone in America today, when our
day-to-day interactions and so much of our life takes place online, should have equal
opportunity to access high-speed broadband and telecommunications services.

52 Monica Anderson & Andrew Perrin, Nearly One-In-Five Teens Can’t Always Finish Their Homework
Because of the Digital Divide, Pew Rsch. Ctr. (Oct. 26, 2018), https://www.pewresearch.org/fact-
tank/2018/10/26/nearly-one-in-five-teens-cant-always-finish-their-homework-because-of-the-digital-
divide/.
53 Id.
54 Colleen McClain et al., The Internet and the Pandemic, 2. Parents, Their Children, and

School During the Pandemic, Pew Rsch. Ctr. (Sept. 1, 2021),

https://www.pewresearch.org/internet/2021/09/01/parents-their-children-and-school-during-the-
pandemic/.
55 Id.
56 See Nat’l Ass’n of Realtors, 2021 Home Buyers and Sellers Generational Trends Report 50 (2021),

https://www.nar.realtor/sites/default/files/documents/2021-home-buyers-and-sellers-generational-trends-
03-16-2021.pdf; John B. Horrigan, The Internet and Consumer Choice, Pew Rsch. Ctr. (May 18, 2008),
https://www.pewresearch.org/internet/2008/05/18/the-internet-and-consumer-choice/.
57 Aaron Smith, Searching for Work in the Digital Era, 1. The Internet and Job Seeking, Pew Rsch. Ctr.

(Nov. 19, 2015), https://www.pewresearch.org/internet/2015/11/19/1-the-internet-and-job-seeking/.

58 Avi Asher-Schapiro & David Sherfinski, Digital Divide in the US: Nearly 40% of Rural Black Americans

Have No Internet at Home, Glob. Citizen (Oct. 7, 2021) https://www.globalcitizen.org/en/content/digital-

divide-black-americans/.
59 Krutika Amin et al., How Might Internet Connectivity Affect Health Care Access?, Peterson-KFF Health

Sys. Tracker (Dec. 14, 2020), https://www.healthsystemtracker.org/chart-collection/how-might-internet-

connectivity-affect-health-care-access/.
60 Jabari Simama, It’s 2020. Why is the Digital Divide Still with Us?, Governing (Feb. 28, 2020),

https://www.governing.com/now/its-2020-why-is-the-digital-divide-still-with-us.html.

10
 IV. Section 202 prohibits discrimination on the basis of race
and other traits.
In this section, we respond to the Commission’s solicitation of comments on its
legal authority and tools available to advancing its statutory mission of promoting
universal service and digital equity, including in paragraphs 3, 7, 34, 39, 89, 90, 119,
151, 152, 153, and 187.61 In response to the Commission’s questions in paragraph 151,
we urge the Commission to add a factor that considers whether an action threatens
equal opportunity.62 In response to the Commission’s questions in paragraph 152, we
recommend the Commission recognize that discrimination on the basis of race or other
characteristics recognized by federal law would violate the general conduct rule. At the
very least, the Commission should clearly acknowledge that Section 202 prohibits such
discrimination, consistent with statute’s text, history, and case law, which we will
address in this section.63 Finally, we agree with the Commission’s proposal not to
forbear from allowing the formal complaint procedures provided by Section 208, as
these procedures are essential to enabling communities to vindicate their own rights
when they suffer discrimination.64
Section 202 of the Communications Act is a powerful anti-discrimination statute
whose text has a 100-year history in the struggle for civil rights. The Commission should
embrace its role as a protector of everyone’s equal opportunity to enjoy the benefits of
telecommunications without discrimination on the basis of race or other characteristics.
The Commission’s longstanding mission, expertise, and authority is to eliminate
discrimination in telecommunications for the purpose of furthering universal service.
Congress instructed that the Commission is “to make available, so far as possible, to all
the people of the United States, without discrimination on the basis of race, color,
religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and
radio communication service with adequate facilities at reasonable charges.”65 Through
Section 201, the Communications Act empowers the Commission to ensure that
telecommunications services, which are common carriers, serve everyone who seeks
service and provide such service with charges and practices that are “just and
reasonable.”66
Pursuant to Section 202, the Commission has authority—and has developed
expertise through decades of regulation and enforcement—to prohibit “any unjust or

61 See NPRM ¶¶ 3, 7, 34, 39, 89-90, 119, 165-67, 187.

62 See NPRM ¶ 151.
63 In response to the Commission’s question in paragraph 153, we highlight the civil rights importance of

the Communications Act’s requirement that the provision of broadband internet access service be
nondiscriminatory as an independent component of the statutory regime, not as a substitute for the
proposed general conduct rule.
64 See NPRM ¶ 89.
65 47 U.S.C. § 151.
66 Id. § 201(a)-(b).

11
unreasonable discrimination in charges, practices, classifications, regulations, facilities,
or services for or in connection with like communication service, directly or indirectly, by
any means or device” as well as to prohibit “any undue or unreasonable preference or
advantage to any particular person, class of persons, or locality, or to subject any
particular person, class of persons, or locality to any undue or unreasonable prejudice
or disadvantage.”67 Courts have held that Section 202 prohibits discrimination on the
basis of protected characteristics such as race or income,68 and the Commission has
also applied it to national origin.69 Section 202 applies to disparate treatment as well as
disparate impact. In the Commission’s recent order establishing rules to prohibit digital
discrimination, it observed, “It requires no showing of discriminatory intent to establish a
violation. Under section 202, where ‘like communications services’ are provided by the
same provider but on different terms or conditions, the provider must justify any
difference as reasonable.”70
Section 202 is notable because it demonstrates that a core purpose of the
Commission is, and always has been, the prevention and elimination of discrimination.
The language of Section 202 has a storied history at the heart of the Civil Rights
Movement’s fight to eliminate Jim Crow segregation.
Section 202(a) was adapted, partially verbatim, from Section 3 of the Interstate
Commerce Act (“ICA”).71 The Supreme Court has observed that the ICA “served as [the
Communications Act’s] model.”72 In particular, “the almost identical non-discrimination

67 Id. § 202(a).
68 See Orloff v. FCC, 352 F.3d 415, 420 (D.C. Cir. 2003) (Common carriers “cannot decline ‘to serve any
particular demographic group (e.g. customers who are of a certain race or income bracket).’” (quoting 17
FCC Rcd. 8987, 8997 (2002))); Barnes v. 3 Rivers Tele. Coop., Inc., No. CV-21-118, 2022 WL 3212100,
at *4 (D. Mont. Aug. 9, 2022) (Section 202(a) prohibits race discrimination).
69 See, e.g., Nina Shahin v. Verizon Delaware LLC, 29 FCC Rcd. 4200 (2014) (adjudicating claim of

national origin discrimination).

70 Implementing the Infrastructure Investment and Jobs Act: Prevention and Elimination of Digital

Discrimination, GN Docket No. 22-69, Report and Order and Further Notice of Proposed Rulemaking,
FCC 23-100 at 22 ¶ 45, 24 n.133 (Nov. 20, 2023), https://docs.fcc.gov/public/attachments/FCC-19-
44A1.pdf.
71 Compare Interstate Commerce Act, Pub. L. No. 49-104, § 3, 24 Stat. 379, 380 (1887) (“[I]t shall be

unlawful for any common carrier subject to the provisions of this act to make or give any undue or
unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or
any particular description of traffic, in any respect whatsoever, or to subject any particular person,
company, firm, corporation, or locality, or any particular description of traffic, to any undue or
unreasonable prejudice or disadvantage in any respect whatsoever.”), with 47 U.S.C. § 202(a) (“It shall
be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges,
practices, classifications, regulations, facilities, or services for or in connection with like communication
service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable
preference or advantage to any particular person, class of persons, or locality, or to subject any particular
person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.”).
72 MCI Telecomms. Corp. v. AT&T, 512 U.S. 218, 229-30 (1994).

12
provisions of the Interstate Commerce Act” were the basis for “the non-discrimination
provisions of the Communications Act.”73
The ICA governed the authorities of the Interstate Commerce Commission
(“ICC”), a sister agency to the FCC. Section 3 was pivotal in the fight for racial
integration in the 20th century, specifically the desegregation of interstate transportation
(an avenue of interstate commerce highly similar to broadband internet access
service—both move high volumes of traffic nationally and locally, by common carriers,
for commercial, cultural, educational, and other purposes). Section 3 was known as the
“unjust discrimination” provision of the ICA74 and, like Section 202, was often used in
cases regarding discrimination between businesses.75 But even as far back as 1914,
the Supreme Court observed that “[t]his language is certainly sweeping enough to
embrace all the discriminations of the sort described which it was within the power of
Congress to condemn.”76 In 1941, the Supreme Court held that this language prohibited
racial segregation in railroad cars.77 Importantly for broadband internet access service,
the Court held that differential demand for a service cannot justify discrimination. “[T]he
comparative volume of traffic cannot justify the denial of a fundamental right of equality
of treatment[.]”78 The Supreme Court reinforced this holding in another Section 3
railroad segregation case in 1950, holding that “limited demand” cannot justify
discrimination because “it is no answer to the particular passenger who is denied
service . . . that, on the average, persons like him are served.”79 In 1955, the ICC held
that Section 3 prohibited segregation on interstate buses after Sarah Keys, a Black
private in the Women’s Army Corps, refused to give up her seat at the front of the bus to
a white Marine.80 Then, in 1960, the Supreme Court again employed this statutory
language to compel desegregation of bus terminals in the landmark case
Boynton v. Virginia.81 “The Interstate Commerce Act, as we have said, uses language of
the broadest type to bar discriminations of all kinds.”82 Civil rights activists tested the
Boynton decision in the 1961 Freedom Rides by riding integrated buses through the
South. The resulting violence against the Freedom Riders appalled the nation and
contributed to the enactment of the Civil Rights Act of 1964, which prohibited
segregation of places of public accommodation.

73 MCI Telecomms. Corp. v. FCC, 917 F.2d 30, 38 (D.C. Cir. 1990).
74 Louisville & N. R. Co. v. United States, 282 U.S. 740, 748 (1931).
75 See, e.g., Houston, E. & W. Tex. Ry. Co. v. United States, 234 U.S. 342 (1914).
76 Id. at 356.
77 Mitchell v. United States, 313 U.S. 80 (1941).
78 Id. at 97.
79 Henderson v. United States, 339 U.S. 816, 825 (1950).
80 Keys v. Carolina Coach Co., 64 M.C.C. 769 (1955); see also T. Anthony Bell, The Quietly Defiant,

Unlikely Fighter: Pfc. Sarah Keys and the Fight for Justice and Humanity, U.S. Army (Feb. 25, 2014),
https://www.army.mil/article/120456/The_quietly_defiant_unlikely_fighter_Pfc_Sarah_Keys_and_the_fight
_for_justice_and_humanity/.
81 364 U.S. 454 (1960).
82 Id. at 457.

13
 While the ICC may no longer exist, Congress gave near identical authority to its
sister agency the Federal Communications Commission as it gave to the ICC.83 It is the
duty of the Commission to prevent discrimination and segregation in
telecommunications, including broadband internet service, to ensure that 21st century
interstate commerce is not tainted by the inequities of prior generations.
To this end, the Commission should recognize that reclassification of broadband
internet access service as a Title II service will mean the application of Section 202 to
prohibit any form of unjustified adverse discrimination by broadband internet access
service providers—whether intentional or by disparate impact.
We also agree with the Commission’s proposal not to forbear from authorizing
the formal complaint procedures in Section 208 to apply to broadband issues.84 We
agree that Section 208 is a “key enforcement authority” that should be available to
protect equal opportunity to access and enjoy broadband internet access service.85 The
ability for communities of color to file and pursue formal complaints is vitally important to
advancing equal opportunity in internet-enabled commerce. Section 208 allows injured
communities to bring complaints of discrimination and other harms without depending
on the limited resources of the Enforcement Bureau or the political will of the
Commission. Black people and other people of color need the ability to vindicate their
own rights because, historically, government agencies and officials have not adequately
represented their interests. As the history of race in America has repeatedly
demonstrated, a law that is unenforced is no law at all.

V. The Commission must protect consumer privacy by not

forbearing from applying Section 222 to broadband and
should propose data minimization and other privacy rules.
In this section, we address data privacy, in response to the Commission’s
solicitation of comments in paragraphs 25, 26, 27, 28, 29, 30, 39, 89, 93, and 119.86

The Commission must not forbear from meeting its statutory obligations to
protect the privacy of broadband consumers under Section 222 and other authorities.
Broadband internet access service providers pose as great or greater risk to privacy as
any other commercial actor by virtue of their unique position in the communications
network. The Commission should propose robust and comprehensive data minimization
rules through further notice of proposed rulemaking. Congress’s repeal of the 2016

83 See MCI Telecomms., 917 F.2d at 38.

84 See NPRM ¶ 89.
85 Id.
86 See NPRM ¶¶ 25-30, 39, 89, 93, 119.

14
broadband privacy rules, under the Congressional Review Act, does not impede
adoption of new rules that are not substantially similar to the repealed rules.

a) Broadband internet access service providers pose a unique threat to

privacy based on their network position and, for mobile broadband,
access to cell-site location information.
Privacy rights are civil rights. The “inviolability of privacy” is “indispensable to
preservation of freedom of association.”87 We care about data privacy because it
ensures that who we are cannot be used against us unfairly. By protecting privacy, we
come closer to building an equitable internet, one that can empower communities of
color. An equitable internet promises the freedom to define oneself, organize, advocate,
learn, play, pray, and build.

But achieving the full measure of freedom in a data-driven economy also requires
freedom from discrimination, which is increasingly amplified online through algorithmic
bias, digital redlining, and pervasive surveillance. Commercial surveillance poses a
threat to equality of opportunity and autonomy. Broadband providers have an unrivalled
position from which to conduct such surveillance.
Title II reclassification will declare broadband internet access service providers to
be common carriers, and thus strip the Federal Trade Commission (FTC) of its authority
to regulate their data privacy practices. This is an appropriate realignment given the
importance of reclassification and the authorities it unlocks. But it also means that the
FCC, like its sister agency, will have an affirmative role to play in building a digitized
society that rejects a new form of “Jim Code”: “the employment of new technologies that
reflect and reproduce existing inequities but that are promoted and perceived as more
objective or progressive than the discriminatory systems of a previous era.”88
Broadband internet access service providers can see all unencrypted traffic
flowing over their networks.89 While an edge provider like Google or Amazon has great
visibility into what a consumer does on their services, they only have visibility into data
generated from activities that occur on their platforms or other platforms that give them
data. Broadband providers, in contrast, see everything because everything must
traverse their networks. And even when communications content is encrypted or
uninspected, unshielded metadata can still reveal highly sensitive information. A
provider does not need to know what a user is doing on a site to expose a user’s
vulnerability. Just like tracking someone’s physical movements, tracking someone’s

87 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958).

88 Ruha Benjamin, Race After Technology: Abolitionist Tools for the New Jim Code 5-6 (2019).
89 See FTC, A Look At What ISPs Know About You: Examining the Privacy Practices of Six Major Internet

Service Providers, iv-v (Oct. 21, 2021), https://www.ftc.gov/system/files/documents/reports/look-what-

isps-know-about-you-examining-privacy-practices-six-major-internet-service-
providers/p195402_isp_6b_staff_report.pdf.

15
virtual movements “reflects a wealth of detail about her familial, political, professional,
religious, and sexual associations. The [provider] can store such records and efficiently
mine them for information years into the future.”90
The list of ways in which one’s online activity could create vulnerabilities, obvious
or subtle, is as infinite as the variability of everyday life itself: for example, visits to
websites for advocacy organizations, religious services, legal aid, political movements,
addiction treatment, abortion services, services supporting LGBTQ teens, immigrant
services, debt relief services, or mental or physical healthcare. Absent use of a virtual
private network (VPN) or other uncommon means of self-protection, broadband internet
access service providers can see all of it. When someone cannot trust that their
activities are private, they cannot have the sense of security necessary to fully express
themselves in ways that may be socially beneficial but potentially controversial or
unpopular, or that could expose themselves to risks of discrimination, fraud, or abuse.
They must either live in fear of the consequences of exposure or self-censor. The harms
to the individual of such chilling effects are concrete and substantial: foregoing care,
benefits, opportunities, and free expression. The harms to the country are greater still:
diminishing opportunity for society and the economy to benefit and prosper from new
ideas.
Mobile broadband providers also can track physical movements, and with greater
precision than virtually any other private actor, through cell-site location information
(CSLI). “These location records ‘hold for many Americans the privacies of life.’”91 The
Commission needs to protect location data for many reasons, including to protect
people seeking reproductive healthcare. Location data can be extremely dangerous if it
falls into the wrong hands—or is carelessly sold to whoever wants it. For example, data
brokers have collected, packaged and sold location data specifically tracking visitors to
Planned Parenthood locations.92 While this example involves data collected by edge
providers, CSLI is often more precise and more comprehensive than the data available
to edge providers, who may only have access to rough location data from disparate and
inconsistent sources. The FTC’s broadband provider privacy report found that “[t]here is
a trend in the ISP industry to offer real-time location data about specific subscribers to
the ISPs’ third-party customers.”93 There is serious concern that location data could be
used to prosecute people seeking reproductive healthcare.94 Access to reproductive
healthcare is essential for Black women and low-income women, who experience higher

90 United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring) (citation omitted).
91 Carpenter v. United States, 585 U.S. __, 138 S. Ct. 2206, 2217 (2018) (cleaned up).
92 Joseph Cox, Data Broker Is Selling Location Data of People Who Visit Abortion Clinics, Vice:

Motherboard (May 3, 2022), https://www.vice.com/en/article/m7vzjb/location-data-abortion-clinics-

safegraph-planned-parenthood. See also Alfred Ng, Data Brokers Resist Pressure to Stop Collecting Info
on Pregnant People, Politico (Aug. 1, 2022), https://www.politico.com/news/2022/08/01/data-information-
pregnant-people-00048988.
93 FTC, supra note 89, at iii.
94 See Alfred Ng, ‘A Uniquely Dangerous Tool’: How Google’s Data Can Help States Track Abortions,

Politico (July 18, 2022), https://www.politico.com/news/2022/07/18/google-data-states-track-abortions-

00045906.

16
rates of unintended pregnancy and are more likely to have abortions. 95 Consequently,
surveillance of people seeking reproductive healthcare is likely to disproportionately
impact these populations.
Because of the far-reaching and persistent systemic effects of segregation and
redlining, it is no surprise that discriminatory uses of personal data, as well as data
practices that disproportionately disadvantage Black Americans and other communities
of color, are prevalent in the online and data-driven economy. In the case of broadband
internet access service providers, a consumer may have little or no ability to access the
internet without subjecting themselves to discrimination. The FTC analyzed the data
practices of the six largest internet service providers and found that many “allow[]
advertisers to target consumers by their race, ethnicity, sexual orientation, economic
status, political affiliations, or religious beliefs.”96 Discriminatory online advertising can
violate civil rights laws and does not necessarily receive immunity under Section 230.97
Data protection is also necessary to protect against identity theft and fraud. As
the FTC has found, identity theft and fraud disproportionately impact communities of
color; low-income consumers are also less likely to have the resources to bounce back
after being ripped off.98 Broadband internet access service providers possess a huge
amount of sensitive information—including bank information, credit card data, and social
security numbers—that are valuable targets of fraudsters. Broadband internet access
service providers have experienced many data breaches. For example, T-Mobile has
disclosed nine data breaches since 2018 (two in 2023 alone), including a breach in the
past year that exposed 37 million accounts.99

95 See Katherine Kortsmit et al., Ctrs. For Disease Control & Prevention, Abortion Surveillance – United
States, 2018, 69 Morbidity & Mortality Weekly Rep. Surveillance Summaries 6 (2020),
https://www.cdc.gov/mmwr/volumes/69/ss/pdfs/ss6907a1-H.pdf; Jenna Jerman et al., Characteristics of
U.S. Abortion Patients in 2014 and Changes Since 2008, Guttmacher Inst. 11 (2016),
https://www.guttmacher.org/report/characteristics-us-abortion-patients-2014.
96 FTC, supra note 89, at iii.
97 See Vargas v. Facebook, No. 21-16499, 2023 WL 6784359 (9th Cir. Oct. 13, 2023); Liapes v.

Facebook, 95 Cal. App. 5th 910 (1st Dist. Sept. 21, 2023).
98 See FTC, Serving Communities of Color: A Staff Report on the Federal Trade Commission’s Efforts to

Address Fraud and Consumer Issues Affecting Communities of Color (2021),

https://www.ftc.gov/system/files/documents/reports/serving-communities-color-staff-report-federal-trade-
commissions-efforts-address-fraud-consumer/ftc-communities-color-report_oct_2021-508-v2.pdf
[hereinafter Serving Communities of Color]; see also Sarah Dranoff, Identity Theft: A Low-Income Issue,
ABA (Dec. 15, 2014),
https://www.americanbar.org/groups/legal_services/publications/dialogue/volume/17/winter-2014/identity-
theft--a-lowincome-issue/.
99 Jess Weatherbed, T-Mobile Discloses Its Second Data Breach So Far This Year, The Verge (May 2,

2023), https://www.theverge.com/2023/5/2/23707894/tmobile-data-breach-april-personal-data-pin-hack-
security.

17
 b) The Commission should propose data minimization regulations in a
further notice of proposed rulemaking.
To protect customer proprietary network information under Section 222, and to
prevent unjust and unreasonable practices pursuant to Sections 201 and 202, the
Commission should propose regulations to protect data privacy. Since the harms
associated with commercial surveillance practices all “begin[] with extraction,”100 it is
vital to establish strong data minimization policies to regulate the collection, use,
sharing, and security of data throughout its life cycle. The Commission should also
consider rules related to transparency, consumer rights, and data security.
As a threshold matter, the Commission should recognize that notice and consent
is a failed system. In other areas of consumer protection, we do not put the onus on the
consumer to protect themselves. We do not allow consumers to consent to having more
arsenic in their drinking water or buy a car without air bags and seat belts. Nor do we
say, “caveat emptor” if a consumer does not know how to check that their contractor
used proper materials in building their home. Consumers expect a baseline level of
safety in the products and services they consume. The same must be true for
broadband privacy. There is room for market competition on higher levels of protection
(for instance, consumers can buy a car with extra safety features), but there should also
be a floor that prohibits unfair practices regardless of purported knowledge or consent
by the consumer. Establishing a floor of what data usages are acceptable or unfair—in
a permissionless environment—is important for building consumer trust in the
ecosystem. If consumers trust that there are guardrails to prevent the abuse of their
information, they will be able to use more services more freely, leading to greater use of
communications technology and greater innovation.
1) Data minimization
The first way to combat harms associated with intrusive data practices is to
collect less data. Broadband providers must limit their data processing and sharing to
information necessary and proportionate to provide the service requested by the
consumer and other enumerated important purposes. In physical as well as online
spaces, Black Americans experience “multiple forms of excessive and discriminatory
surveillance.”101 Minimizing the collection, use, and sharing of consumer data is an
important step in combatting such discriminatory surveillance practices.

The European Union’s General Data Protection Regulation (“GDPR”), provides

one model for data minimization.102 Specifically, the GDPR states that companies

100 Shoshana Zuboff, You Are the Object of a Secret Extraction Operation, N.Y. Times (Nov. 12, 2021),
https://www.nytimes.com/2021/11/12/opinion/facebook-privacy.html.
101 Anita L. Allen, Dismantling the “Black Opticon”: Privacy, Race Equity, and Online Data-Protection

Reform, 131 Yale L.J.F. 907, 910 (Feb. 20, 2022).

102 Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection

of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such

18
should only process personal data that is “adequate, relevant and limited to what is
necessary in relation to the purposes for which they are processed (‘data
minimisation’).”103 The European Data Protection Supervisor (EDPS)—the EU’s
independent data protection authority established under the GDPR—has defined data
minimization as the principle that “a data controller should limit the collection of personal
information to what is directly relevant and necessary to accomplish a specified
purpose. They should also retain the data only for as long as is necessary to fulfil that
purpose.”104 The bipartisan American Data Privacy and Protection Act (“ADPPA”), which
passed the U.S. House Energy & Commerce Committee 53-2 in 2022, has a similar
provision, stating that a “covered entity may not collect, process, or transfer covered
data unless the collection, processing, or transfer is limited to what is reasonably
necessary and proportionate to . . . provide or maintain a specific product or service
requested by the individual to whom the data pertains.”105
Taken together, GDPR and ADPPA highlight two major aspects of the data
minimization principle, the first of which is tied to the company’s purpose in processing
or sharing data. Current data processing practices lead companies to state their
purposes for data collection, use, or sharing broadly (if at all), resulting in excessive and
unnecessary data processing. For instance, a survey conducted by the International
Data Corporation (IDC) found that companies use only 32% of the data that they collect,
while the remaining 68% is mere noise.106 The Commission should require broadband
internet access service providers to clearly articulate a legitimate purpose in collecting,
using, or sharing consumers’ data so that their data processing practices are strictly
limited in scope to fulfilling that purpose. This articulation should be specific, succinct,
and written plainly such that “[e]veryone involved, including data subjects and members
of the enterprise, should be able to easily understand the purpose and use of the
data.”107
Vitally, this purpose needs to meet clear standards of legitimacy. ADPPA
articulates legitimate uses of data under the heading “permissible purposes.”108 The
Commission should adopt a similar approach and enumerate permissible purposes for
collecting, using, or sharing data—and recognize that a purpose may authorize one of

Data, and Repealing Directive 95/46/EC (General Data Protection Regulation), 2016 O.J. (L 119), art. 5
[hereinafter GDPR].
103 Id. art. 5(1)(c).
104 European Data Protection Supervisor, Data Minimization, https://edps.europa.eu/data-protection/data-

protection/glossary/d_en#:~:text=Data%20minimization,necessary%20to%20fulfil%22that%20purpose
(last visited Nov. 1, 2022).
105 H.R. 8152, 117th Cong. § 101(a) (2022); see also id. § 102 (establishing stricter data minimization

rules for “sensitive” data such as health, location, or financial information).

106 Cf. Seagate, Rethink Data: Put More of Your Business Data to Work—From Edge to Cloud 5 (2020),

https://www.seagate.com/files/www-content/our-story/rethink-data/files/Rethink_Data_Report_2020.pdf.
107 Mohammed Khan, Data Minimization—A Practical Approach, ISACA (Mar. 29, 2021),

https://www.isaca.org/resources/news-and-trends/industry-news/2021/data-minimization-a-practical-
approach.
108 H.R. 8152 § 101(b).

19
those acts but not the others. The Commission should consider the following
permissible purposes with regard to non-sensitive personal data:
• To provide or maintain a specific product or service, or to manage or complete
transactions, requested by a consumer including associated reasonable routine
administrative, accounting, or operational activities;
• To deliver a communication from one individual to another person;
• To authenticate a user, effect product recalls, or fulfill warranties;
• To prevent, detect, protect against, or respond to network security or physical
security incidents, and otherwise as needed to protect data security;
• To prevent, detect, protect against, or respond to fraud, harassment, or illegal
activity, where such illegal activity can result in harm to an individual;
• To comply with a legal obligation or to pursue or defend against legal claims
involving the company;
• To respond to emergencies posing risk of serious injury or death; and
• To conduct scientific, historical, or statistical research in the public interest, with
appropriate safeguards.
In addition, some purposes may be permissible for processing previously
collected data but may not be a legitimate purpose for collecting new data. Some
purposes may be legitimate, or not, for data transfers. For example, transferring
personal data in a merger, acquisition, or bankruptcy should only be allowed if each
affected individual is given notice and an opportunity to delete their data or withdraw
previously given consents. Transferring personal data to a government actor, without
either a court order or consent of the individual(s) to whom the information pertain(s),
should not be a permissible purpose. And of course, a legitimate purpose to take one
act should not authorize other secondary uses unless they are independently justified.
The second aspect of the data minimization principle is related to the duration
that a consumer’s data is retained. Put simply, collected data should not be retained for
longer than is necessary to satisfy a legitimate purpose. A failure to erase old or
unnecessary data poses significant security risks, as numerous data breaches attest.109
This is particularly true for communities of color, who are disproportionately affected by
“surveillance, algorithmic bias, and other emerging issues” as well as identity theft and
fraud.110 Thus, the European Commission has clarified data minimization requires that

109 See Aaron Drapkin, Data Breaches That Have Happened in 2022 So Far, tech.co (Oct. 26, 2022),
https://tech.co/news/data-breaches-2022-so-far.
110 Serving Communities of Color, supra note 98, at 3, 7-16, 20.

20
“[d]ata must be stored for the shortest time possible” for legitimate business needs, anti-
fraud measures, and legal compliance.111
The data minimization principle should similarly restrict the sharing of data with
data brokers and other third parties. Absent regulations on the reuse of data, consumer
data “can easily be repurposed to discriminate or over-police in communities of
color.”112 Given that notice and consent regimes are generally ineffective, the
Commission should restrict use of data processing and sharing for secondary purposes,
even if the broadband internet access service provider could obtain express consent
from the consumer. In particular, the Commission should prevent broadband internet
access service providers from disclosing non-public personal data to a service provider
or third party without contractually requiring that the service provider or third party meet
the same privacy standards as the collecting company.113
The Commission should establish stricter data minimization requirements for
particularly sensitive personal information.114 ADPPA Section 102, for instance, states
that “a covered entity or service provider may not . . . collect or process sensitive
covered data, except where such collection or processing is strictly necessary to
provide or maintain a specific product or service requested by the individual to whom
the covered data pertains.”115 ADPPA further restricts transfers of sensitive data;
outside of a few specific situations, sensitive data can only be transferred to a third party
with opt-in consent from the consumer.116
2) Transparency
Transparency plays a key role in consumer protection, the identification of
discrimination, and oversight. As such, transparency requirements should be broad, and
they should include full disclosures of a broadband internet access service provider’s
data collection and processing practices using clear and plain language that can be
easily understood by consumers. Providers should thus be required to explain their data

111 European Commission, For How Long Can Data Be Kept and Is It Necessary to Update It?
https://ec.europa.eu/info/law/law-topic/data-protection/reform/rules-business-and-organisations/principles-
gdpr/how-long-can-data-be-kept-and-it-necessary-update-it_en (last visited Nov. 18, 2023) (emphasis in
original).
112 Becky Chao et al., Centering Civil Rights in the Privacy Debate, New Am.: Open Tech. Inst. (Aug. 14,

2019), https://www.newamerica.org/oti/reports/centering-civil-rights-privacy-debate/.
113 See, e.g., H.R. 8152 § 302.
114 ADPPA specifically defines what constitutes “sensitive covered data.” This category includes

government-issued identification (such as social security numbers and passports); personal health
information (related to both physical and mental health); financial accounts; biometric information; genetic
information; precise geolocation data; personal or private communications (including the content of
emails, text messages, and voice mail); log-in credentials or security access codes; information related to
a person’s sexual preferences or habits; calendar, contact, and address book information; photographs
and video information; data related to online activities; information about children; and protected
characteristics (including an “individual’s race, color, ethnicity, religion, or union membership”). See id. § 2
(28)(A)(i)–(xvi).
115 Id. § 102(2).
116 See id. § 102.

21
collection, use, and sharing policies and practices in two ways: (1) exhaustive long form
privacy policies that can be scrutinized by experts, researchers, watchdogs, and
regulators; and (2) simple short form notices that are easy for any consumer to
understand and quickly digest.

The exhaustive privacy policies should accurately and clearly represent the
policy choices that a broadband internet access service provider makes in collecting,
processing, retaining, and sharing data. More specifically, these long-form privacy
policies should detail at a minimum (1) the types of personal information that the
provider processes and an explanation of how it obtains such information; (2) the
specific permissible purposes for which the provider processes each type of data it
collects; (3) the names of third parties and service providers with whom the provider
shares personal information and the specific and legitimate purpose behind each type of
disclosure; (4) the duration of data retention for each category of data; (5) a general
description of data security practices; (6) a description of how individuals may exercise
their rights or otherwise control the provider’s processing of their personal information;
(7) a description of the method by which the company will notify individuals of material
changes to its data policies; and (8) the effective date of the notice.117 Recognizing the
importance of transparency for an open and efficient marketplace, the Commission
should narrowly tailor any exceptions from corporate disclosures.

A short-form notice specifically designed for consumers should supplement these

long-form disclosures. ADPPA provides a useful model for requirements: the short-form
notice must be “concise, clear, conspicuous, and not misleading;” “readily accessible;”
“inclusive of an overview of individual rights and disclosures to reasonably draw
attention to data practices that may reasonably be unexpected to a reasonable person
or that involve sensitive covered data;” “a detailed and accurate representation of the
data collection, processing, and transfer activities of the covered entity;” and “no more
than 500 words in length.”118 The GDPR similarly emphasizes the importance of
companies employing clear, concise, and easily understandable language in drafting
privacy policies for consumers. Its Recital 58 provides: “The principle of transparency
requires that any information addressed to the public or to the data subject be concise,
easily accessible and easy to understand, and that clear and plain language and,
additionally, where appropriate, visualisation be used.”119 An ideal short form notice fits
neatly on one page. The Commission should also develop model short form notices as
guidance to businesses.

117 See Free Press Action & Lawyers’ Committee for Civil Rights Under Law, The Online Civil Rights and
Privacy Act of 2019 (model legislation) 13, https://www.freepress.net/policy-library/online-civil-rights-and-
privacy-act-2019 (last visited Nov. 7, 2022).
118 H.R. 8152 § 202(f).
119 GDPR, recital 58.

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 3) Consumer rights and the limited role of consent
An effective regulatory approach for consumer privacy must confer specific
privacy protections and privacy rights. Information on a firm’s privacy practices is of
limited use without the corollary ability to act on the information received.
One of the most important privacy rights that consumers should possess is the
right to access, correct, delete, and port personal data. These rights are particularly
important to combat discrimination: access to data can reveal discrimination; correction
can help fix inaccurate background reports that can gatekeep opportunities;120 and
deletion can frustrate the ability of an abuser to find their target and protect the privacy
of people seeking healthcare.121
The Commission should establish that it is unjust and unreasonable for a
company to condition service upon a consumer waiving their right to privacy or waiving
other rights (including the right to sue) unless it is impossible for the company to provide
service otherwise. Consumers should have the right to opt out of non-essential data
processing without retaliation or penalty.
Absent protections, broadband internet access service providers can coerce
consumers into accepting intrusive data collection practices. Consumers “lack
bargaining power with companies looking to use their data. Consumers either consent
and have access to a service, or they decline and they have no access to that service at
all, often without equivalent alternatives.”122 When consumers are required to assent to
take-it-or-leave-it privacy policies, they cannot negotiate terms. This empty choice
particularly harms low-income consumers, who are more likely to be unable to bear the
costs associated with the privilege of opting out. Professor Anita Allen has shown, for
instance, that “[l]ow-income African Americans may decline privacy protections, such as
smartphone encryption, due to prohibitive costs of data-secure devices and services.”123
Denials of service or prohibitive cost increases vitiate the concept of consent: “when the
choice is between accepting the terms or not gaining access to the service, is that
choice even meaningful?”124

120 For instance, reports show that “today’s credit reporting bureaus make a tremendous amount of
mistakes at the consumers’ expense,” and these mistakes may “[d]isproportionately [i]mpact Black
[c]onsumers.” Natalie Campisi, From Inherent Racial Bias to Incorrect Data—The Problems With Current
Credit Scoring Models, Forbes: Advisor (Feb. 26, 2021), https://www.forbes.com/advisor/credit-
cards/from-inherent-racial-bias-to-incorrect-data-the-problems-with-current-credit-scoring-models/.
121 See, e.g., Tiffany C. Li, In Post-Roe America, Your Cell Phone Is Now a Reproductive Privacy Risk,

MSNBC (June 26, 2022), https://www.msnbc.com/opinion/msnbc-opinion/states-abortion-bans-can-

weaponize-your-own-data-against-you-n1296591.
122 Claire Park, How ‘Notice and Consent’ Fails to Protect Our Privacy, New Am.: Open Tech. Inst. (Mar.

23, 2020), https://www.newamerica.org/oti/blog/how-notice-and-consent-fails-to-protect-our-privacy/.

123 Allen, supra note 102, at 916.
124 Ctr. for Info. Pol’y Leadership, Are Our Privacy Laws Asking Too Much of Consumers and Too Little of

Businesses? (Dec. 13, 2019), https://www.informationpolicycentre.com/cipl-blog/are-our-privacy-laws-

asking-too-much-of-consumers-and-too-little-of-businesses.

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 Consumer consent warrants close scrutiny. Companies purposefully employ
“dark patterns”—or the deliberate misleading of users by “obscuring, subverting, or
impairing consumer autonomy, decision-making, or choice”—to deceive consumers into
giving away their personal data.125 Examples of dark patterns include online
subscriptions and free trials that make it difficult for a user to unsubscribe, deceptively
labeled buttons, or graphical elements that direct users’ attention away from certain
options on a website.126
Dark patterns are particularly harmful for consumers of color. For instance, at the
FTC’s Workshop on this issue, panelists noted that “greater economic stress, language
barriers, and cultural differences all may make non-English speakers and people of
color more susceptible to dark patterns and lead to disparate impacts that exacerbate
existing racial and socioeconomic disparities.”127 Yet even in the absence of covert
manipulation, “[c]onsent places an immense burden on individuals to protect
themselves and understand what is happening with their data. . . . The sheer volume of
personal data collected, inferred, used and shared in the digital economy makes this
impossible.”128
There are, nonetheless, a limited number of discrete circumstances where
affirmative, specific, and contextually relevant consent may play a role. In particular, any
sharing of sensitive personal information with third parties should require affirmative
express consent, obtained on a case-by-case basis, with a specific and conspicuous
notice and request explaining why the consent is necessary. Consent should be
necessary for data sharing with law enforcement absent a court order. But when relying
on consent to address these cases, the Commission must also be extremely careful not
to allow a release valve to turn into a loophole. Obtaining consent cannot become a
workaround to bypass data minimization rules.
4) Data security
The Commission should propose data security obligations. The policies outlined
above would be undermined if malicious actors could breach networks, exploit
vulnerabilities in applications, and gain unauthorized access to user data. Accordingly,
fair data practices also include implementing data audits, conducting regular security
scanning, performing data protection impact assessments, and developing data breach
policies and procedures.

125 FTC, Bringing Dark Patterns to Light: An FTC Workshop (Apr. 29, 2021), https://www.ftc.gov/news-
events/events/2021/04/bringing-dark-patterns-light-ftc-workshop.
126 Jasmine McNealy, What Are Dark Patterns? An Online Media Expert Explains, Nextgov/FCW & The

Conversation (Aug. 3, 2021), https://www.nextgov.com/ideas/2021/08/what-are-dark-patterns-online-

media-expert-explains/184244/.
127 Serving Communities of Color, supra note 98, at 37.
128 Ctr. for Info. Pol’y Leadership, supra note 125.

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 Data breaches, identity theft, and fraud are especially harmful to communities of
color.129 Many of these schemes are enabled by companies’ lack of adequate data
security practices. When a company is negligent in its data security, that increases the
risk of breaches of sensitive customer personal information, which can then be used by
bad actors to engage in identity theft and other forms of fraud.130 Moreover, identity theft
and fraud are also particularly detrimental to low-income consumers. When a financially
secure person has their identity stolen, they often can weather the expense until the
situation is resolved. But for people living paycheck to paycheck—especially if they work
multiple jobs and have little time to spend on hold with customer service departments—
a few fraudulent charges can ruin their credit and be devastating.

VI. Conclusion
For the foregoing reasons, the Lawyers’ Committee supports the reclassification
of broadband internet access service as a Title II service and urges the Commission to
adopt rules to combat discrimination, promote equal opportunity, and protect data
privacy.

129See, e.g., Serving Communities of Color, supra note 98, at 20.

130See, e.g., Elec. Priv. Info. Ctr., Equifax Data Breach, https://archive.epic.org/privacy/data-
breach/equifax/ (last visited Nov. 15, 2022) (discussing how data breaches at major credit bureaus and
the Office of Personnel Management led to identity theft, tax fraud, and credit card fraud).

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